Isn't it nice when new information proves you were right all along? The Obama administration has had that happy experience, and it shared the good news on May 20, when NOAA's National Marine Fisheries Service unveiled its Supplemental Biological Opinion on operation of the federal Columbia River system dams. The government looked at some new science. It looked at the old BiOp. And ... what do you know? Touch the old document up a little, and it's good to go — just as the feds had thought.
'êFeds tweak Columbia salmon plan,'ê says the headline on the Idaho Statesman's web site. "Obama Administration backs Bush-era plan for Columbia Basin salmon," says the equivalent headline in the Oregonian. "While there are verbs among the 'actions,' " says Todd True, managing attorney of Earthjustice's Northwest office, 'êthere is no action.'ê
Earthjustice attorney Steve Mashuda dismisses the new document as "a book report." Not even the government's own press release pretends that much has changed.
Federal courts have been tossing Columbia River BiOps since the Seattle Mariners had Alex Rodriguez at shortstop and Randy Johnson on the mound. The federal agencies are already 0-for-4. U.S. District Judge James Redden, who has thrown out two biological opinions and has had the current version in his court for two years, has made it clear that his patience has pretty well run out. It's hard to predict his next step in a case that has already dragged on into almost unchartered waters.
"I thought [this supplemental BiOp was just what the judge didn't want, which was window dressing," says Save Our Wild Salmon's associate director, Dan Drais. We'll see.
The first Columbia Basin salmon population — Snake River sockeye — was listed in 1991. (By this time, 13 populations of Columbia and Snake river fish have joined the list.) Since then, the federal courts have rejected three biological opinions. (A fourth, explicitly short-term, was withdrawn.) "Two years after a federal judge in Portland told the federal government it was doing too little to protect salmon and too much to protect the status quo, environmentalists are back before him arguing nothing has changed and the region's wild salmon runs are even closer to extinction," Les Blumenthal wrote in a Tacoma News Tribune piece about the latest Columbia River BiOp — in 1996.
The Clinton administration issued a BiOp in 2000, just as it was heading out the door. Redden sent the opinion back because it was based on actions that were "not reasonably certain to occur."
The Bush administration could have merely created a little more certainty. Instead, it concocted a brand-new opinion based on a brand-new legal theory: the dams had, in effect, become part of the natural baseline, so the government didn't have to consider their effects. Redden tossed it. The 9th U.S. Circuit Court of Appeals sustained his decision.
Team Bush tried again in 2008. Gone was the legal novelty of its first attempt. The new BiOp tried, in the view of many critics, to stick largely with business as usual — but to conclude it would produce an unusual result. The Bush administration did suggest that the government could comply with the Endangered Species act if the listed salmon populations were "trending toward recovery." That could presumably mean one more fish per year.
It was a concept foreign to statute or case law. But then Bush was gone. Obama was in. The new president had talked about letting good science lead policy. Some salmon advocates hoped that things would change.
But one can never be too cynical where Northwest salmon politics are concerned. Team Obama took the ball from team Bush and kept running. The same ball. In the same direction. Redden made it clear that the Bush BiOp was probably a loser. Among other things, he said, "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. Even if 'trending toward recovery' is a permissible interpretation ... the conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious."
The Obama administration didn't quite stand pat, but it didn't do anything fundamentally different. Last September it came up with an Adaptive Management Implementation Plan designed to save the Bush BiOp from the ashes. When the plaintiffs pointed out that the management plan wasn't part of the administrative record and that therefore the judge couldn't legally consider it, the feds asked for and got a voluntary remand so they could affix the adaptive management plan to the BiOp and have Redden rule on the whole package. Redden had said though, that just tacking on the Adaptive Management Implementation Plan wouldn't suffice. 'êIf federal defendants conduct a superficial'ê¦remand," he said, "I will view that final agency decision with heightened skepticism."
To the untrained eye, the change certainly seems to have been superficial. Basically, the administration has looked at a little more science, and a few more scientists have looked at the BiOp, and the feds will collect more data, and the "action agencies" will base more of their — unspecified — habitat restoration effort on considerations of climate change. That's pretty well it. If you liked the previous version of the BiOp, you;ll love this one.
This version talks more than the basic BiOp or Adaptive Management Implementation Plan about the impact of climate change. But the recommended actions mostly involve monitoring water temperatures. As Drais paraphrases the approach, "climate change is happening, and we're just going to watch it happen."
The idea that spawning habitat at higher elevations, where it's cooler, can help salmon survive in a world of rising temperatures seems easier to grasp in California than it is here. Last year, in its Biological Opinion (pdf) on operation of the Central Valley Project and California State Water Project, NOAA's California office made access to high-elevation habitat a goal. Concerned about the effects of climate change on salmon in the Sacramento and San Joaquin river systems, it told the federal Bureau of Reclamation to come up with a long-term plan for getting those fish into coldwater habitat above the Shasta and Folsom dams.
Here, the high elevation habitat lies in the mountains of central Idaho, above the lower Snake River dams. The idea of breaching those dams has been stoutly resisted by defenders of the status quo, including many Washington politicians. The Supplemental BiOp doesn't even hint that climate change may make coldwater habitat above those dams critically important.
It does talk a bit more about the fact that endangered Southern Resident Killer Whales (aka Puget Sound orcas) rely heavily on chinook salmon. It cites evidence that orcas may be 50 percent less likely to calve in a bad chinook year. But it still says that hatcheries will make up for any chinook losses caused by operation of the dams, so the orcas won't have less food (The Central Valley BiOp was less sanguine about the long-term productivity of hatcheries.) It doesn't acknowledge the fact that the Central Valley BiOp required the federal agencies to restore salmon as part of their obligation to restore orcas. And it still doesn't acknowledge that if you want the orca population to grow, you need to increase its prey base, not just hold the numbers steady.
The math is pretty simple: more killer whales will eat more chinook. "The NOAA Recovery Plan anticipates that (the orcas) would be considered recovered when they reach about 100 adults," a group of orca biologists wrote Commerce Secretary Gary Locke and NOAA chief Jane Lubchenko before the Obama administration committed itself to business as usual, "although as you are well aware, a population of that size is normally considered critically endangered. Even this minimal level of recovery would require a doubling in prey availability range-wide." Just keeping the current chinook population from crashing won't do the trick.
Despite Judge Redden's expressions of concern that the feds "improperly rely on speculative, uncertain, and unidentified tributary and estuary habitat improvement actions" even though their "own scientists have concluded that many of the proposed estuary mitigation measures (and the assumed benefits) are unsupported by scientific literature," those habitat improvements remain the bedrock of the plan. If they and the other actions envisioned in the BiOp don't work, the feds don't intend to do anything rash. Redden complained that 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." Not much has changed on that score, either.
To be ready just in case those actions don't save the fish, 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."
In the adaptive management plan, the government has said it won't actually study dam breaching unless things get really bad, but it will basically figure out how to do a study, just in case: "(T)he (Army Corps of Engineers) 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 [a] diagnosis is completed that concludes dam breaching is necessary to address and alleviate the biological trigger conditions for the applicable Snake River species." Mashuda has dismissed this proposal as "a study to do a study."
For the time being, young salmon will have to make their way downstream through or past those dams every spring. Each year from 2006 to 2009, the plaintiffs had asked for and Redden had issued an order requiring the federal agencies to spill water to help young fish downstream. This year, the feds wanted to stop spilling in May. After the Independent Scientific Advisory Board, which reviews questions about fish for the Northwest Power and Conservation Council, the Fish Passage Center, and the Western Division of the American Fisheries Society all said that would be a bad idea, the feds withdrew their request.
Under the adaptive management plan, the federal agencies could choose to spill or not to spill every year. The parties would presumably continue to fight about it every year. ('êI can't think of a bigger time sink'ê than perpetuating that annual event, Mashuda says.) Last May, Redden urged the feds to consider following the scientific board's spring and summer spill recommendations for the duration of the BiOp. The feds' answer would seem to be "no."
The feds have proposed making a complete record available by the end of August, after which both sides would file yet another round of briefs. However the timing and technicalities work out, barring serious negotiation, the ball is now in Redden's court.
The feds' brinksmanship "sets up a very interesting dynamic where something big has to happen," Mashuda says. But what? Redden has made it clear that he doesn't want to send the feds back to the drawing board yet again. If he had wanted to take control of dam operations, he would have done so by now. But what's a judge to do? The Obama administration seems to have earned his 'êheightened skepticism.'ê