The fish can't afford to wait much longer, and the judge doesn't want to: "Federal defendants have spent the better part of the last decade treading water and avoiding their obligations under the Endangered Species Act,'ê U.S. District Judge James Redden has written to the attorneys litigating the Bush administration's last Biological Opinion on operating the federal Columbia River dams. 'êOnly recently have they begun to commit the kind of financial and political capital necessary to save these threatened and endangered species, some of which are on the brink of extinction. We simply cannot afford to waste another decade."
Redden's patience is running out. In February, he wrote the attorneys: 'êI have no desire to remand this biological opinion for yet another round of consultation. The revolving door of consultation and litigation does little to help endangered salmon and steelhead." "The odd thing'ê about public reaction to the judge's letter, says Earthjustice attorney Steve Mashuda, has been people's expressions of surprise. 'êHe's been telling us he's had big concerns about the BiOp all along.'ê
Since 1991, when the first Columbia River system salmon population was listed, the National Marine Fisheries Service has issued five biological opinions on operation of the federal Columbia River power system. The courts have thrown out three. The agency withdrew one on its own. The fifth is now before Judge Redden — who threw out the BiOps issued in 2000 and 2004.
Does Redden's latest letter represent anything new? 'êYes,'ê says Earthjustice attorney Todd True. The new letter makes it clear that 'êhe doesn't think this Biological Opinion does what the law requires, and he wants some changes.'ê
Indeed, it does. 'êI still have serious reservations about whether the 'trending toward recovery' standard [that the Bush administration unveiled in this BiOp] complies with the Endangered Species Act, its implementing regulations, and the case law,'ê Redden wrote.
'êTrending toward recovery'ê appears in neither statute nor case law. It is a new concept that the Bush administration artfully coined as part of its long-running effort to justify the status quo. Under Endangered Species Act regulations, a governmental action places a species in 'êjeopardy'ê if it 'êreduce[s] appreciably the likelihood of both revival and recovery of a listed species ....'ê Under the 'êtrending toward recovery standard,'ê it isn't clear what jeopardy would mean.
As Redden has pointed out, the Bush administration has never really explained. American Rivers' Washington state conservation director, Michael Garrity, characterizes 'êtrending toward recovery'ê as the 'êone more fish standard.'ê During oral argument, Redden himself asked if one additional Snake River fish per year for 10 years would qualify. He didn't get a direct answer.
'êTrending'ê seems to set the bar pretty low. But the feds' approach to it has been less high jump than limbo. 'êEven if 'trending toward recovery' is a permissible interpretation of the jeopardy regulation,'ê Redden wrote, 'êthe conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious. . . .'ê
It doesn't get any clearer than that. Redden listed the reasons why he considered that conclusion arbitrary and capricious, including:
(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; . . .
(5) The BiOp 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.'ê
So, what would a rational contingency plan look like? Redden proposed 'êdeveloping 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.'ê
In other words, breaching had better be on the table. One imagines a fuss out on the playground: 'êHe said the 'B' word! He did! He did! We all heard him!'ê
Salmon advocates have argued for years that breaching is the only way to save the Snake River runs, and that the alternatives, ginned up by officials who will promise virtually anything in order to save the dams, are doomed to fail. Others, who value the dams as a source of electricity and irrigation water and as key parts of a system that makes Lewiston, Idaho, a deep-water port, have always argued that the salmon can do just fine with the dams as they are. The arguments go round and round. Even 'êtrending toward recovery'ê mirrors an argument made to the judge who tossed out the very first Columbia River BiOp in 1994. 'êThe most amazing thing to me after working on this case for nine years,'ê Mashuda says, 'êhas been how often we've returned to the same arguments.'ê
No one ever doubted where the last administration stood. 'êGeorge W. Bush made it clear that [breaching] would never happen on his watch,'ê Kim Murphy wrote in the Los Angeles Times. 'êThe dams, after all, are generating enough electricity to power Seattle, and to provide Lewiston, Idaho, with a port for barging valuable cargoes of grain 140 miles down the river. But it's a new watch. 'ê
True thinks it's significant that Judge Redden's recent letter 'êcomes at a time at which the new administration is re-examining the Biological Opinion." We're hopeful, he says, that the Obama administration will decide to chart a different course Still, he observes, when it comes to Columbia River salmon, 'êthe history of hijacked science is long.'ê
Clearly, not everyone wants to see dam removal on the table, even as a contingency. 'êWe'êve got a judge who put on a black robe and thinks it came with a crown and throne,'ê eastern Washington Congressman Doc Hastings said in a press release. 'êJudge Redden has no authority to order dam removal, and dam removal will never happen because Northwest citizens understand we can protect our clean, renewable hydropower dams and recover salmon at the same time. Federal law doesn'êt allow dam removal and no Democrat-politician-turned-activist-Judge can rewrite the law. Only Congress has the authority to authorize dam removal and as the top Republican on the Committee of jurisdiction, you can be certain I'êll do everything in my power to stop any such extreme action."
Elsewhere, similarly extreme action has been gaining credence, if not momentum.
The Elwha dams on the Olympic Peninsula are supposed to start coming down in three years. PacifiCorp has agreed to remove the 125-foot Condit Dam on Washington's White Salmon River. Condit is scheduled to come down in 2010.
On a grander scale, PacifiCorp has agreed in principle with the federal government and the states of Oregon and California to get rid of four dams on the Klamath River. (American Rivers, other environmental groups, counties, tribes, and farming and commercial fishing groups have all been parties to the negotiations, but did not sign the formal agreement in principle.) If a long list of conditions is met, demolition on the Klamath River may start in 2020, and the parties are supposed to conclude a final agreement by the end of June.
The first of the Klamath dams went up in 1918, the last in 1962. The snag came when PacifiCorp had to relicense them. In 2006, the California Energy Commission and the U.S. Department of the Interior found that if the utility provided the fish passage that would be required in order to get the dams re-licensed, its customers would probably be better off without them. In fact, 'êfor the midline case, . . . decommissioning would be $101 million less costly than relicensing.'ê Under the agreement in principle, the Secretary of the Interior would take a broader look at costs and benefits.
There is no direct connection between the actions contemplated by all parties on the Klamath and some parties on the Snake, but there may be a psychological link. At least, Mashuda says, when some of these dams start coming down, opponents will have a harder time arguing 'êit will never work.'ê The Klamath agreement 'êhas probably opened some people's minds,'ê Garrity suggests. Now, 'êpeople see dam removal as a legitimate tool.'ê
Some do and some don't. 'êDam removal would have devastating consequences on our region'ês economy,'ê Congressman Hastings said. 'êIt would cost thousands of jobs.'ê Therefore, he argued, 'êdam removal should not be put back on the table in any form, not even as a contingency plan. Only after the last Administration took dam removal off the table did the region see an unprecedented level of collaboration and agreement. . . . If the door to dam removal is opened even a crack, I fear it'ês certain we'êll see an unraveling of progress and disintegration into a pitched dispute that will last years.'ê
A Biological Opinion is supposed to provide a scientific evaluation of biological consequences. The weighing of costs and benefits should take place afterward. That isn't how the process has worked on the Columbia River. The weighing of costs and benefits has become an implicit part of what is supposed to be a scientific process. As Mashuda puts it, the process has been to 'êsay 'here's what we're willing to do' — which always turns out to be very little — and then you backfill.'ê
There's certainly room to disagree over the economics. A couple of years ago, "Revenue Stream," a study prepared by the staffs of Save Our Wild Salmon and seven other organizations, concluded that breaching the dams 'êwill likely save American taxpayers and Northwest electricity ratepayers a minimum of about $12 million to $2 billion over 10 years, and $2 billion to $5 billion over 20 years, and restore Snake River salmon in the process. Beyond the billions saved, removing the four lower Snake River dams will ultimately produce as much as a five-fold increase — between almost $4 billion to $7 billion over 10 years — in new annual revenue generated from tourism, recovered fish runs, and outdoor recreation.'ê
The Bonneville Power Administration argued that "Revenue Stream" had underestimated the power costs. Instead of saving $12 million to $1.7 billion over ten years, BPA figured breaching would cost an extra $1.6 to $3.8 billion. The agency also cited a U.S. Army Corps of Engineers' conclusion that breaching by itself wouldn't save the fish.
So far, the conclusions depend largely on who is doing — or paying for — the study. But if dam defenders are so sure of their arguments, why not let the science lead wherever it will, then call in the God Squad or let some truly independent body look at the numbers? It's all just a question of where the subsidies flow. Right now, Mashuda notes, they all flow toward river transportation. (A study in the 1990s found that if you counted subsidies, transporting a ton of cargo down the lower Snake by barge cost more than 10 times as much as transporting it by rail.) But these subsidies don't have to flow that way. 'êA fresh look [at all this] by an independent body would be wonderful,'ê Mashuda says.
As for the politics of removing the dams, Garrity says, 'êI've had conversations with farmers in Eastern Washington who say that if the goal is to have a viable transportation system with or without dams, they'd be open'ê to discussing it. 'êI think we can get past the people who aren't willing to discuss this in a reasonable way,'ê he adds.
But first, 'êsomebody has to insist on having a reasonable conversation.'ê