U.S. Judge Orders Revisionby Lynda V. Mapes, staff reporter
A federal judge yesterday ordered the government to retool key aspects of its plan for saving salmon in the Columbia and Snake rivers, giving new life to the long and bitter debate between river users and environmentalists over breaching four Lower Snake River dams.
U.S. District Judge James Redden's ruling yesterday found the salmon-restoration plan, set forth by NOAA Fisheries in December 2000, falls short because it relies on efforts to save the fish that are too uncertain, a violation of the federal Endangered Species Act.
A hearing will be held May 16 to determine how to operate the federal hydropower system while the federal government either appeals the ruling or reworks the recovery plan, called a biological opinion.
"This forces the federal government to reassess the whole picture," said Glen Spain of the Pacific Coast Federation of Fishermen's Associations, a plaintiff in the suit. "The original (plan) was based on hopelessly optimistic assumptions, speculation and a good bit of wishful thinking. We need a plan that is based on real science and not a hope and a prayer. Taking dams out has got to be on the table."
Jan Hasselman, counsel for the National Wildlife Federation in Seattle, said the decision reopens the debate over dams — not that his organization ever dropped it. Environmentalists have argued that breaching the dams is the only way to restore a natural river system that will nourish fish runs back to health.
"Taking a pray-for-rain approach that other fixes will solve the problem won't work," Hasselman said.
But Patrick Batts, administrative vice president of the Washington Farm Bureau, which intervened on behalf of the federal government in the case, said if they had to lose, now was a good time.
"We are in the midst of some of the largest salmon returns we have ever had. To send this back and take a look at it now, well, I have to believe it will work in our favor," Batts said.
No disruption of dams
Dam operations should not be disrupted as the case is either appealed or a new biological opinion worked up, he said. "We need to keep the dams and farmers operating."
Dean Boyer, spokesman for the farm bureau, said he sees no reopening of the dam-breaching question with the ruling. "It's settled as far as the Bush administration ... and farm bureau are concerned."
Twelve species of salmon and steelhead are listed for protection in the Columbia and Snake rivers. But rather than take out the four Lower Snake River dams, NOAA Fisheries, the part of the National Oceanic and Atmospheric Administration charged with leading the recovery effort, in December 2000 issued a so-called biological opinion that relied on other measures to build back depleted runs.
That decision divided the region: While Seattle environmentalists pushed for the dams to come out, rural communities east of the mountains that depend on slack water for irrigation and shipping were staunchly opposed. The energy crisis in the winter of 2001-2002 further set back dam-breaching proponents, because of the shortage of electricity.
Both sides dug in deeper in May 2001 when a coalition of 16 environmental and conservation groups filed suit with the backing of the state of Oregon and four Indian tribes.
Backing the federal government in the no-dam-breaching strategy were the states of Washington, Idaho and Montana, as well as farming, utility, irrigation and shipping interests.
At the heart of the issue is how to operate the federal Columbia River Power System — a network of 14 dams, powerhouses and reservoirs in the Snake River basin and upper and lower Columbia — without driving the fish to extinction.
The system is relied on regionwide for its power generation as well as irrigation, and to provide an inland waterway all the way to Lewiston, Idaho.
But it's been a bad deal for the fish from the beginning: juvenile salmon, especially, die in droves, victims of slow, warm slack water; predators, and trauma as they pass the turbines. Barging as many as half the out-migrating smolts, as baby salmon are called, to the sea hasn't solved the problem.
Neither have tens of millions of dollars worth of technical fixes to the dams, from screens over the turbines, to bypass systems intended to whoosh migrating fish past the powerhouse.
A major overhaul of the status quo was demanded by the courts as far back as 1993, but has yet to occur. Indeed, the feds conceded in the 2000 biological opinion that continued operations of the dams was likely to jeopardize the fish, and adversely affect their habitat. But that was to be avoided with a series of steps, including modifications in dam operations, habitat improvements and changes in hatcheries.
The feds also called for more research, as well as monitoring and a system of periodic check-ins to assess whether their plan was working.
Opponents argued the plan violates the Endangered Species Act because it depended on actions that are "not adequately specific, adequately funded, supported by adequate authority or adequately assured."
The court agreed, finding the federal plan would not protect salmon throughout their range. The agency also relied on actions by others it could not be sure would happen.
"The regulatory standard is not 'reasonable chance' but 'reasonable certainty,' " the judge ruled. And a hedge of periodic check-ins is not enough to counterbalance that fact, the judge ruled.
Brian Gorman, spokesman for NOAA Fisheries, defended the success of the agency's strategy. "Frankly, it's working. We've got good (salmon) returns, good habitat improvements, and we are smarter about hatcheries. Overall, conditions are better for salmon than they were."
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