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Snake Dams Could Face New Scrutiny Following Interior's Report by K.C. Mehaffey NW Fishletter, July 1, 2023

"I took this to mean they're going to issue
a supplemental EIS on dam breaching."
-- Darryll Olsen, Columbia-Snake River Irrigators Association

The U.S. Department of the Interior released a report June 18 outlining the cumulative and ongoing impacts that 11 hydroelectric dams in the Columbia Basin have had on Native American tribes in the region, and offering new recommendations to help the federal government live up to its treaty responsibilities.

The 73-page report includes a comprehensive evaluation of the importance of the Columbia River and its tributaries to tribes in the region, including their sovereign rights to access and harvest salmon and other natural resources and how those rights are protected under treaties. It also provides an in-depth look at the impacts the federal hydroelectric system has had on tribal rights and resources.

"Driven primarily by economic objectives both immediate and long-term, the United States designed and then constructed a system of dams of unprecedented scale," the report states. "In less than a century, from the 1900s to 1970s, the system of dams forever modified the already stressed Columbia River ecosystem. The transformation from free-flowing river to a slow moving, regulated reservoir system further exacerbated the precipitous decline of Columbia River salmon returns that had begun in the early 1900s, culminating in the listing of numerous salmonid species under the Endangered Species Act beginning in the 1990s."

In a news release, Secretary of the Interior Deb Haaland and the White House Council on Environmental Quality said the report indicates President Joe Biden's recognition that confronting injustice requires being honest about history.

"Acknowledging the devastating impact of federal hydropower dams on Tribal communities is essential to our efforts to heal and ensure that salmon are restored to their ancestral waters," Haaland said in a prepared statement.

But parties involved in a decades-long lawsuit over the federal hydropower system say the report could also be a potential precursor to dam removal -- or at least the means to call for a new analysis on breaching the four lower Snake River dams.

A news release from Earthjustice -- which represents plaintiffs in the lawsuit -- notes that environmental analyses of the Columbia River System Operations must now be informed by the report, including any decisions about whether the federal government should recommend that Congress authorize breaching the Snake River dams. "This report underscores the imperative for the Administration and Congress to take all actions necessary to rebuild healthy and abundant salmon and other native species across the Basin, including substantial increases in funding across the Basin and Congressional authorization to breach four Lower Snake River dams," Earthjustice Supervising Senior Attorney Amanda Goodin added.

That's no surprise to Darryll Olsen, board representative for the Columbia-Snake River Irrigators Association, who said the report appears to be a precursor for conducting a new environmental impact statement on breaching the four lower Snake River dams. "I took this to mean they're going to issue a supplemental EIS on dam breaching. That's what they're setting up here," he told NW Fishletter.

Public Power Council CEO and Executive Director Scott Simms said renewed calls to breach the Snake River dams could reverberate through the entire Federal Columbia River Power System.

"I think aim is being taken across the whole federal hydropower system now," he told NW Fishletter.

He added, "Northwest citizens should be concerned by the continued myopic focus on dam breaching and potential for runaway rate increases that the U.S. Government seems to advance every few months. We stand to lose our clean hydropower, river navigation and commerce, flood control, recreation, irrigation and -- ironically -- funding for one of the world's largest fish mitigation programs that also yields millions of pounds of salmon harvested annually from our rivers and oceans."

He criticized the report for failing to acknowledge the great work that's going on in salmon restoration today. He added, "There's a lot more to learn about what the government's intent is."

Zabyn Towner, executive director of the Northwest Requirements Utilities, took the opportunity to state NRU's opposition to breaching the Snake River dams, and to reinforce that congressional approval would be necessary for breaching to proceed. "Neither the creation of the Task Force, nor this report, changes that the Council on Environmental Quality, along with others in the Biden Administration, have stated in very certain terms that an Act of Congress is required to breach the dams. This is NRU's position, and we will be working to ensure that it remains the U.S. Government's position," he said in a statement.

Clark Mather, executive director of Northwest RiverPartners, focused on the importance of clean hydropower for salmon survival. "Northwest RiverPartners supports efforts that fulfill U.S. obligations to Northwest Tribes, and in confronting the need to address harms to Indigenous people, we should avoid deepening or causing other injustices," he said in a news release. "Climate change is among the greatest threats to people and salmon," he said.

To the Nez Perce Tribe, the report provides documentation of the devastating impacts dams have had and the first acknowledgement by the federal government.

"The Tribal Circumstances Analysis is a stark reminder that the federal dams were built on the backs of our Tribal Nations and our people, and continue to decimate our salmon populations and our culture, sovereignty, and way of life," Shannon Wheeler, chair of the Nez Perce Tribal Executive Committee, said in a news release. "The United States -- by telling the truth about the historic and ongoing injustices the federal dams have imposed on our people and by embracing its Treaty and trust obligations -- is upholding the rule of law and highlighting the urgency to act to prevent salmon extinction," he said.

The report fulfills a commitment the U.S. government made as part of the Dec. 14 agreement that led to a stay in litigation over Columbia River System Operations. It "marks the first time that the U.S. government has comprehensively detailed the harms that federal dams have and continue to inflict on Tribes in the Pacific Northwest," a news release from Interior says.

The report and recommendations focus on 11 dams -- including the four lower Snake River dams, the four lower Columbia River dams, Grand Coulee Dam, Chief Joseph Dam and Dworshak Dam. It directly addresses impacts to eight tribes: the Coeur d'Alene Tribe of Indians, the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Colville Reservation, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, the Nez Perce Tribe, the Shoshone-Bannock Tribes of the Fort Hall Reservation, and the Spokane Tribe of Indians.

However, the report notes, these and other dams in the Columbia Basin impact other tribes that are not addressed in the report due to the limited time frame for completing it.

Many of the recommendations are aimed at informing future decisions. The report calls on federal agencies to "fully consider and integrate the unique inequities Tribes have suffered as a result of federal dam construction and operation, as well as other actions adversely impacting Tribes' rights and resources."

It says National Environmental Policy Act analyses should recognize that baseline conditions have been degraded over decades and persistent historical inequities result from ongoing actions. "Agencies should exercise all authorities to take and support actions benefiting the depleted resources on which the Tribes rely, and work toward making a reality the salmon and other resource abundance the Tribes have long called for," the report says.

It also quotes an Interior solicitor, who argued that actions related to fisheries management "may go beyond safeguarding their right to an appropriate share of the harvest on their reservation . . . to include a viable and adequate fishery from which to fulfill the Tribes' rights."

The report adds, "Considering the impacts described in this report, as articulated by Tribes for decades, the government must do better and continue taking affirmative steps to improve the conditions of the Tribes and the resources that support the government's treaty commitments and Tribes' self-governance rights. This is especially true in the face of climate change, which threatens to exacerbate the many adverse impacts already imposed on Tribes."

To: Committee on Natural Resources Republican Members
From: Subcommittee on Oversight and Investigations Staff
Subject: Oversight Hearing titled "Examining Systemic Government Overreach at CEQ"
Date: Thursday, September 14, 2023

The Subcommittee on Oversight and Investigations will hold an oversight hearing titled, "Examining Systemic Government Overreach at CEQ" on Thursday, September 14, 2023, at 10:00am EDT in room 1324 Longworth House Office Building.

Member offices are requested to notify Cross Thompson by 4:30 p.m. on September 12, 2023, if their Member intends to participate in the hearing.

I. KEY MESSAGES

President Biden has transformed the once small Council on Environmental Quality (CEQ) staff from their core mission of ensuring compliance with the National Environmental Policy Act of 1969 (NEPA) into a legion of frontline warriors for implementing radical social change and eco-justice initiatives across the federal government.

CEQ's role in implementing executive orders and rulemaking vastly exceeds its statutory role and prescribed authority.

It is imperative for CEQ to abide by the Fiscal Responsibility Act's significant NEPA and permitting reforms -- reforms that will make it faster and easier to build critical infrastructure projects and reduce the burden on taxpayers by creating efficiencies in the permitting process.

The recent NEPA Phase Two Proposed Rulemaking issued by CEQ ignores significant NEPA reforms of the Fiscal Responsibility Act -- specifically those aimed at reducing the scope of NEPA reviews -- and undercuts the White House's agreement with Congress.

CEQ was invited to testify at this hearing but declined to appear. CEQ's willful disregard for Congress and the rule of law impacts all Americans -- from the cost of heating and cooling our homes to small and large businesses, their impact has no bounds.

. . .

f. CEQ's involvement in the Lower Snake River Dams

The Lower Snake River Dams in the Columbia River Basin and Washington state were authorized by Congress in 1945 and have the capacity to supply 3,000 megawatts of carbon- free energy. Particularly during periods of high demand, the Lower Snake River Dams help to keep the Pacific Northwest power system reliable, even during emergencies. Additionally, the Lower Snake River Dams play a critical role in reducing transportation emissions. Between 50 and 60 million tons of cargo are transported through barges along the river each year and forty percent of America's wheat transits through the system.

Despite the immense importance of the Lower Snake River Dams, and continuous work to improve fish passage rates, radical eco-activist groups have abused the litigation system for decades in pursuit of dam removal. Simultaneously, the Biden administration has attempted to circumvent Congress by betraying previous federal actions supporting the continued operation of the Lower Snake River Dams and is instead heeding calls for breaching the dams.

Those in favor of breaching the Lower Snake River Dams often fail to recognize, and/or ignore, the value of the Lower Snake River Dams and the cost of replacement. In 2016, the Bonneville Power Administration (BPA) estimated that replacing the dams would increase power costs by $274 million to $372 million per year. Six years later, in 2022, BPA commissioned a study by a San Francisco environmental consulting firm, Energy + Environmental Economics ("E3"), which found that the cost of replacing the output from the Lower Snake River Dams ranges from $415 million to $860 million per year through 2045. Moreover, under assumptions from litigants supporting breaching the Lower Snake River Dams, up to 1.2 terawatts (or 1,200,000 MWh) would depend on technologies not yet readily available, such as hydrogen-fueled combustion turbines.

In 2020, the federal government released a Record of Decision (ROD) on the operations for the Columbia River System, which includes the Lower Snake River Dams. The ROD did not endorse dam breaching, stating that while breaching may benefit "some species of ESA-listed fish, it would achieve those benefits at the expense of not meeting the other components of the agencies' Purpose and Need Statement for certain EIS objectives." Shortly thereafter, Earthjustice, the National Wildlife Federation, and other eco-groups, sued the federal government to challenge the ROD.

Instead of aggressively defending the official position of the federal government, the Biden administration, notably CEQ, has sought to appease the calls to breach the Lower Snake River Dams and has shown favoritism to the plaintiffs in confidential negotiations. In 2021, the federal government, the State of Oregon, the Nez Perce Tribe, and plaintiffs to the litigation filed an agreement with the U.S. District Court that outlined how dam operations would be altered in the coming year while allowing for parties to reach further agreement on long-term operations.

Shortly thereafter, in March 2022, CEQ published a blog outlining a "path forward" for the Columbia River Basin following a consultation between agencies and Tribes of the Columbia River Basin. The blog post specifically supported a policy of breaching the four dams on the lower Snake River, contradicting the 2020 ROD on the operations of the Columbia River Basin system. At the same time, CEQ engaged the Federal Mediation and Conciliation Service (FMCS) to "mediate and facilitate between the parties in the litigation and the regional sovereigns, including Tribal Nations and states." FMCS, on behalf of CEQ, announced public listening sessions for the public.

While the mediation process is confidential, many of the defendants have expressed deep reservations and considerable disappointment regarding the overall mediation process. Of particular concern is the Biden administration's apparent push to forgo trying to reach a "consensus" resolution and instead advance a predetermined outcome of dam removal. At the end of August, the U.S. District Court extended the stay in the long-running litigation to allow the mediation to continue until the end of October. Stakeholders expressed dismay with the mediation process, the Biden administration's favoritism towards the eco-activist plaintiffs, and the role of CEQ.

IV. CONCLUSION

President Biden has transformed CEQ's role from overseeing NEPA compliance to the entity charged with implementing his radical eco-agenda, remaking federal agencies as vehicles of social change, and leading the war on domestic energy production. A bureaucratic morass of various agencies, offices, and councils report to and take directions from CEQ. At the same time, CEQ's role in implementing executive orders and rulemaking vastly exceeds its statutory role and prescribed authority. It is imperative for CEQ to abide by the Fiscal Responsibility Act's significant NEPA and permitting reforms -- reforms that will make it easier to build in America, speed up timelines for critical infrastructure projects, and reduce the burden on taxpayers by creating efficiencies in the permitting process. Sadly, the recent NEPA Phase Two Proposal from CEQ ignores significant NEPA reforms of the Fiscal Responsibility Act, specifically those aimed at reducing frivolous environmental lawsuits and betrays the White House's agreement with Congress.