Surprisingly to environmentalists, the Obama administration has embraced the Bush administration's science and its novel interpretation of the Endangered Species Act. Tuesday (Sept. 15) morning, after months of delay, NOAA Fisheries filed an adaptive management plan to convince U.S. District Judge James Redden that it can make the Bush administration's 2008 biological opinion on operation of the federal Columbia River dam system work.
Last year, salmon advocates moved for a preliminary injunction against putting that BiOp into effect. The motion was stayed, pending consultation between the government and the various interested parties. There wasn't much consultation after the Obama administration came in. Plaintiffs figured the government had already made up its mind. Now we know what it has made up its mind to do.
The plaintiffs are not impressed. Earthjustice said in a press release that the federal government will “continue to support an old Bush-era federal salmon plan, with only minor, cosmetic changes. The decision includes support for the Bush-era scientific analysis, legal standard, and disregard for the impacts of dam operations and climate change on salmon.”
“The new administration has kept the 2008 Bush salmon plan intact,” said Michael Garrity , Washington Conservation Director for American River. Garrity said the administration's approach “sets the bar so low that many Columbia and Snake river salmon and steelhead runs will remain at a high risk of extinction. . . . Our hope is that Judge Redden will see this insufficient plan for what it is and reject it, spurring the administration and congressional leaders to convene real salmon recovery negotiations with people in the region.”
Under the Endangered Species Act, the federal government must avoid actions that would jeopardize the recovery of a listed species. If you want to avoid jeopardy, explains Todd True, managing attorney of Earthjustice's Northwest office, “you have to have success, not just avoid catastrophic failure.” The government suggests that if catastrophic faillure seems imminent, it will make a plan. It proposes indicators of failure, but not benchmarks for success. Even at that, True says, the new strategy “doesn't really address the fundamental question of what actions are we going to take if the plan is not succeeding.”
Redden has implied that if he is forced to rule on this BiOp, he'll toss it just as he did the BiOps issued in 2000 and 2004. This is actually BiOp number five since the first Snake River salmon population was listed in 1991. One was tossed by another judge. One was explicitly short-term and was withdrawn. The 2000 BiOp acknowledged that business as usual would jeopardize recovery of the fish. Redden tossed it too, because it relied on habitat improvements and other measures that weren't “reasonably certain to occur.” The 2004 version theorized that the dams had become part of the river's environmental baseline, so the government didn't have to consider their effects. That novel theory had no basis in law, and Redden tossed it, too.
Last year, the Bush Administration produced a BiOp that said as long as listed salmon populations were “trending toward recovery,” the federal action would comply with the Endangered Species Act. “Trending toward recovery” had no basis in law, either. No one was entirely certain what it meant. Presumably, one more fish in a population that still fell thousands short of viability would meet the standard.
Once again, the judge was skeptical. “I still have serious reservations about whether the 'trending toward recovery' standard complies with the Endangered Species Act, its implementing regulations, and the case law,” Redden wrote the attorneys in May. “Even if 'trending toward recovery' is a permissible interpretation of the jeopardy regulation,” Redden wrote, “the conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious. . . .”Redden's reasons for considering it arbitrary and capricious include:
“(1) Federal Defendants improperly rely on speculative, uncertain, and unidentified tributary and estuary habitat improvement actions to find that threatened and endangered salmon;
“(2) Federal Defendants' own scientists have concluded that many of the proposed estuary mitigation measures (and the assumed benefits) are unsupported by scientific literature;
“(3) Federal Defendants assign implausible and arbitrary numerical survival improvements to tributary habitat actions, even though they have not identified specific habitat actions beyond 2009, and there is no scientific data to support those predictions; . . .”
Nevertheless, the Obama administration has clung to “trending toward recovery.” It will simply do more studies to see if the Bush plan works and more contingency plans to keep salmon from going down the drain if it doesn't. The “Administration believes that while the science underlying the 2008 BiOp is fundamentally sound, there are uncertainties in some of the predictions regarding the future condition of the listed species. Further contributing to these uncertainties is the Administration’s understanding about how climate change may affect these species and their habitats. The Administration also identified the need to better understand the impact of invasive species and predators on the listed species, as well as the interactions among the listed species. In light of these uncertainties, the Administration believes these issues would be addressed by accelerating and enhancing existing RPA mitigation actions; collecting more data and improving analytic tools to better inform future adaptive management decision-making; and adding new biological triggers that when tripped will activate near- and long-term contingency.“
The feds had better hope that's good enough, because Redden has made it clear that he doesn't want to see a sixth Biological Opinion. “I have no desire to remand this biological opinion for yet another round of consultation,” Redden wrote the attorneys in February. “The revolving door of consultation and litigation does little to help endangered salmon and steelhead."
More recently, he wrote: “We simply cannot afford to waste another decade."
The big question was whether or not the administration would explicitly consider breaching the lower Snake River dams. This has been the heart of the conflict all along. Redden pointed out that the 2008 Biological Opinion “does not articulate a rational contingency plan for threatened and endangered species in the event that the proposed habitat improvements and other remedial actions fail to achieve the survival benefits necessary to avoid jeopardy.”
In case of such failure — which salmon advocates consider inevitable — Redden proposed “developing a . . . plan to study specific, alternative hydro actions, such as flow augmentation and/or reservoir drawdowns, as well as what it will take to breach the lower Snake River dams if all other measures fail.”
That's what the government has proposed — sort of. It wants to make a plan to make a plan. It wouldn't actually study dam breaching unless things got really bad, but it would basically figure out how to do the study, just in case: “a science-driven study of dam breaching is included as a potential Long-term Contingency Action. By March 2010, the Corps will develop a study plan regarding the scope, schedule and budget for the technical studies that would be needed. Within six months of a Significant Decline Trigger being tripped for a Snake River species, the Corps would initiate those technical studies, if an All-H Diagnosis is completed that concludes dam breaching is necessary to address and alleviate the biological trigger conditions for the applicable Snake River species.”
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