National Wildlife Federation V. National Marine Fisheries ServiceMedia Release
Summary of Legal Claims, May 3, 2001
A coalition of conservation, fishing, and river recreation groups today filed a lawsuit against the National Marine Fisheries Service (NMFS) arguing that the agency‚s recently released federal salmon plan, or 2000 Biological Opinion, violates the Endangered Species Act (ESA). The coalition‚s complaint challenges at least five serious, substantial, and fundamental defects in the federal plan.
The ESA requires a cautionary approach to species conservation. That means when faced with uncertainty, the law requires federal agencies to err on the side of species protection, even if it imposes a burden on federal projects. The federal salmon plan throws caution to the wind, however, and places the risk squarely on the backs of Columbia and Snake River salmon. Three examples illustrate the point:
a. One-Fish Does Not Equal Survival
First, the federal plan defines salmon "survival" as just one adult salmon returning to spawn over an entire salmon generation. This means that as long as one fish returns in a four to five year span of time, the plan will have met the ESA‚s survival standard. Equating the return of only one fish with the survival of a salmon population vastly underestimates the risk of extinction for Columbia and Snake River salmonids and defies biological science.
b. Populations Do Not Decline at a Constant Rate
Second, the federal plan assumes that salmon and steelhead populations have been declining at a constant rate and will continue to decline at this same rate into the future. In fact, the scientific evidence demonstrates that many of the listed salmonid populations are declining at an accelerated rate, not a constant rate. Again, ignoring the truth about the population declines produces a salmon plan that substantially and consistently underestimates the magnitude and the immediacy of the risks to salmonid populations.
c. Benefits Do Not Accrue Immediately
Third, the federal plan assumes that benefits from speculative actions taken outside the hydro system and harvest arenas, such as improvements to estuary and tributary habitat, will accrue immediately, even though the plan readily admits that many of these activities will not be implemented for 10 years or more. This allows NMFS to grossly underestimate the population growth necessary to return healthy salmon populations. For example, without this optimistic assumption, the survival improvements needed for Snake River spring/summer chinook are more than double what NMFS currently estimates.
The federal salmon plan includes an emergency clause that allows the Bonneville Power Administration (BPA) to call power emergencies. Once called, these "emergencies" then eliminate river management requirements like flow augmentation and spill, which NMFS has concluded are necessary to meet ESA requirements. In the last several weeks, we have seen that this exemption is so large that it has become the rule. BPA has called several emergencies and as a result has violated the flow and spill requirements in the federal plan during a critical time in the salmon migration season.
NMFS concludes in the plan that the federal system of dams will jeopardize the existence of all listed Snake River salmon and steelhead and four of the listed Columbia River salmon populations. To compensate for this dam-induced jeopardy, NMFS has chosen to rely on voluntary and speculative actions from other federal agencies and state and private parties. For some species, two-thirds or more of the necessary improvements come from these measures, such as improvements to estuary and tributary habitat and hatchery operations. NMFS relies on these measures despite the fact that courts have found the ESA does not allow federal agencies to use voluntary or speculative actions to avoid jeopardizing recovery or survival.
The ESA provides a limited exception allowing "otherwise lawful" actions to sometimes "incidentally" kill, or "take," small numbers of protected species. The law requires NMFS to track the additive and combined effects of these permitted incidental takes so a number of individual activities do not cumulatively devastate the species. Nevertheless, NMFS has not been tracking its take authorizations. Instead, NMFS allows the federal system of dams alone to take more than 88% of some listed salmon stocks, even though the agency has issued numerous other authorizations to take those same salmon and steelhead throughout the Columbia River Basin. NMFS‚ failure to track its incidental takes has likely authorized more than100% of these stocks to be killed.
The ESA requires federal agencies to protect habitat that is critical to the survival of a species. While NMFS has designated the salmon‚s migratory corridor through the lower Snake and Columbia rivers as critical for the fish, this corridor has become so lethal to juvenile salmon that NMFS relies on trucking and barging fish around the dams. Scientific evidence shows that this process is detrimental to endangered salmon and steelhead. The fact that NMFS relies on trucking and barging indicates salmon and steelhead habitat has been significantly degraded. NMFS‚ reliance on the transportation system illustrates that the federal plan violates the ESA‚s protection against habitat degradation.
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