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Snake River Dam Litigation Put On Hold by Eric Barker Lewiston Tribune, October 22, 2021

Involved parties hope to 'identify and review alternative solutions'

The Biden Administration agreed today with the Nez Perce Tribe, Oregon, and fishing and conservation groups to call a timeout to long-running salmon-and-dams litigation and seek a lasting fish recovery solution in the Columbia River basin.

The parties to the legal wrangling, which has spanned several administrations, submitted a proposed stay that includes an agreement outlining spill and reservoir levels at the dams next spring and summer. But the bigger development is the stated willingness of the parties to "identify and review alternative and durable solutions."

"This agreement opens an opportunity for states, tribes, federal agencies, Congress and all stakeholders to work together to forge enduring solutions that are so badly needed," said White House Council on Environmental Quality Chairwoman Brenda Mallory. "The Administration is committed to reaching a long-term solution in the region to restore salmon, honoring our commitments to Tribal Nations, ensuring reliable clean energy and addressing the needs of stakeholders."

The negotiations are certain to include a push from the plaintiffs for the four dams on the lower Snake River to be breached, an action they have sought for more than two decades. That idea, once ridiculed as crazy and radical, has slowly gained momentum.

Earlier this year, Rep. Mike Simpson, of Idaho, unveiled his $33 billion concept to breach the dams and mitigate affected communities and industries. Last week, Washington Gov. Jay Inslee said he and Sen. Patty Murray, D-Wash., would seek ways to replace the services provided by the dams.

Breaching would speed the river's flow and shorten the time it takes juvenile fish to reach the ocean. It would also eliminate the injuries smolts suffer while passing the dams. Fisheries scientists say those injuries result in lower survival for Snake River fish compared to those from other Columbia River tributaries.

But breaching the dams would do away with carbon free hydropower generation and eliminate tug-and-barge transportation that many farmers rely on to get their crops to market. The federal government has long resisted the idea.

Samuel N. Penney, chairman of the Nez Perce Tribe, said Snake River salmon and steelhead remain at risk of extinction and the agreement may prove a turning point.

"Visionary action to save our salmon and honor our treaties is urgently needed. We need the United States government to comprehend the situation and act," he said. "The science is clear: salmon and steelhead need a free-flowing, climate-resilient lower Snake River, not a series of slow, easily-warmed reservoirs. The Nez Perce Tribe and its people intend to ensure that salmon do not go extinct on our watch."

The tribe's 1855 Treaty with the federal government reserves the rights of Nez Perce people to fish for salmon and steelhead in the Snake and Columbia rivers.

Interior Secretary Deb Haaland, the first native American to serve in the post, said the stay would afford an opportunity to seek creative solutions to the litigation and those most affected by fish declines.

"While it is important to balance the region's economy and power generation, it is also time to improve conditions for tribes that have relied on these important species since time immemorial."

The parties are requesting a stay from Judge Michael Simon that would last through July 31. The Nez Perce, Oregon, and the fishing and conservation groups previously asked the judge to implement 24-hour spill at Snake and Columbia River dams and to lower reservoir levels to help the imperiled fish while their suit challenging the federal government's latest plan seeking to balance the needs of fish with dam operations is heard.

The Trump Administration approved that plan in 2020. A related environmental impact statement identified dam removal as providing the best survival benefit to Snake River salmon and steelhead. But it also said the costs would be too high and the strategy they adopted -- spilling water at the dams most of the day but cutting back during times of high energy demand and prices -- would also help the fish.

All of the government's previous plans have been overturned by federal judges in the litigation that dates back to the 1990s.

Kurt Miller, executive director of Northwest River Partners, an industry group representing publicly owned electric utilities, said the agreement is a positive turn because it blocks the prospect of Simon ordering 24-hour spill. But he believes climate change instead of dams is the chief cause of fish declines. Since dams produce carbon free power, he said they should be retained. Miller also said he worries his organization, a defendant intervenor in the litigation, might not be privy to the negotiations.

"That is not a positive sign for this bigger comprehensive solution," he said. "We represent communities that service over 3 million electric customers across the region and those customers deserve a seat at the table."

Justin Hayes, executive director of the Idaho Conservation League said the fish need urgent action. Earlier this year, the Nez Perce Tribe released an analysis of wild fish runs that showed 42 percent of Snake River spring Chinook salmon populations are dangerously close to extinction. Hayes said information like that is resonating with leaders and citizens of the Northwest.

"I think change is coming in the region and these dams will be coming down for salmon, for orca, for tribal justice. and anyone who doesn't think this is happening is not paying attention to what the fish need and what the people of the Northwest need."