First of two articles
In the words of the former New York Yankees catcher and manager Yogi Berra, "it's deja vu all over again." In mid-June, the National Wildlife Federation and an array of other environmental and fishing groups filed a complaint in federal court alleging that the federal government's Biological Opinion (BiOp) on the operation of the Columbia River dams violates federal law. The feds have been issuing these Columbia River BiOps since the Clinton administration. Conservation groups, fishing groups, tribes and the state of Oregon have been challenging them — and prevailing.
Courts have shot down four BiOps so far. The BiOp issued in 2010 was much like the one issued in 2008 (deja vu). The BiOp issued this year is much like the one issued in 2010 (deja vu all over again). Yogi nailed it.
When the current BiOp came out in January, little had changed from the version that a federal court struck down in 2011 — it was clearly just a matter of time before the usual plaintiffs came back to make some of the usual arguments. "We've talked with [the Bonneville Power Administration], we've talked with the [U.S. Army Corps of Engineers], we've talked a lot with Washington state.in order to set the table for a collaborative negotiation," says Save Our Wild Salmon executive director Joseph Bogaard, but it hasn't worked. Everyone is back in court.
True, the past doesn't necessarily provide a roadmap to the future. True, when the National Oceanic and Atmospheric Administration (NOAA) released the BiOp, it proclaimed that "improvements at federal dams on the Columbia and Snake rivers, rehabilitation of habitat, and other actions are benefiting federally protected salmon and steelhead as much as or more than anticipated five years ago." Still, based on the historical record, one would be foolish not to anticipate the usual results.
There are, however, two ways to view the repetition of results. On one hand, the federal defendants haven't taken a single round in court. On the other, they haven't had to fundamentally change the system. "If the defendants define delay as victory," Bogaard says, "then they're winning."
The focus of all these ponderous BiOps and all these years of litigation has been the impact of dam operations on the Columbia River system's threatened and endangered salmon populations. There are 13 of them, the first of which was listed for federal protection in 1991. How does the Columbia River dam system (which includes dams along the Snake River) affect the fish? How will the feds mitigate the effects and restore the populations?
(Although the BiOp overview talks of avoiding "the likelihood of jeopardizing the continued existence of 13 listed salmon and steelhead species," the Endangered Species Act calls for recovery, not mere survival, of listed species. The Bush administration invented the concept of "trending toward recovery," which has not yet been adjudicated but survives in this BiOp.)
The plaintiffs argue, as they always have, that the feds aren't doing and don't plan to do enough. This threatens the recovery not only of salmon populations, but also of endangered Southern Resident Killer Whales, which some prefer to call Puget Sound orcas. The orcas eat salmon. They prefer to eat big, fatty Chinook salmon. They evolved near the Columbia, which was the greatest Chinook river in the world. In its recovery plan for Southern Resident Killer Whales, NOAA has acknowledged that "perhaps the single greatest change in food availability for resident killer whales since the late 1800s has been the decline of salmon from the Columbia River basin."
And yet ... the BiOp recognizes the relationship, but argues that business as usual is all the endangered sea mammals need. Hatcheries will more than make up for the Chinook currently lost at the dams, so the orcas' food supply won't decline. But the plaintiffs argue that NOAA has chosen the wrong baseline. The BiOp doesn't confront the fact that the current number of salmon supports a small and dwindling number of killer whales. To support more orcas — to restore the orca population, as the law requires — we will presumably need more salmon.
NOAA recognized this explicitly in its BiOp on operation of California’s Central Valley Project and California State Water Project. There, the agency called for changes in river management designed to improve the survival of Chinook and therefore help restore the population of orcas. In the Northwest, it has done nothing of the kind.
The federal agency doesn't even seem to have heeded the warnings of now-retired U.S. District Judge James Redden, who tossed the last three BiOps. The plaintiffs argue that the new BiOp's rosy predictions of salmon recovery still rely — in the words used by Redden when he rejected the last version — "on unidentified mitigation measures that are not reasonably likely to occur."
The BiOp authors obviously had Redden's words in mind, however. They have stressed the certainty with which habitat improvements will be made. Just as certainly, the plaintiffs don't buy it.
They argue that the current BiOp, like its predecessors "fails to disclose that implementation of the estuary habitat actions . . . have fallen far behind, that NOAA’s methodology and model for estimating survival improvements from estuary actions cannot properly be used to predict specific survival benefits from particular actions in any event, and that the survival benefits NOAA is now predicting — even with improper use of its model — exceed the total possible benefits identified in that model."
In light of NOAA's past failures to do what it said, the plaintiffs say, "NOAA irrationally dismisses any possibility that the hoped-for estuary actions will not occur or produce their excepted survival benefits." They also point out a contradiction: BiOp language puts the proposals in positive terms, although some BiOp tables show the habitat actions aren't on track to avoid jeopardy for most of NOAA’s priority salmon and steelhead populations.
They also note that the BiOp actually calls for less of a mitigation measure than has actually been performed and has been shown to work: spilling water over the dams in the spring, to speed young fish on their way downstream. Courts started ordering the spills back in 2006. In 2010, when the feds announced that they would reduce the amount of water spilled, two scientific groups said that would be a bad idea. The Independent Scientific Advisory Board quoted one of its own reports, which noted that as a way of getting salmon past dams, "'spill more closely mimics natural situations and ecological processes than other available routes." The board said spills should be considered the default recommendation rather than just one of several alternatives. The feds backed down.
All indications are that more spill equals more salmon surviving to maturity. On the other hand, more spill equals less revenue generated by power sales. The new BiOp would allow the federal agencies that operate the dams to spill less water.
The BiOp argues that spill wouldn't be reduced all that much and therefore the reduction wouldn't make all that much difference.
The Bonneville Power Administration has basically said, "No, they don't want any part of" increased spill, Bogaard says. "From our perspective, spill seemed like a hell of a compromise." Some scientists have suggested, he explains, that if you spilled enough water, you might not have to do anything else. If the federal agencies would commit themselves to more spill, he says, his group would be willing to look at what could be cut back on in other areas for fish, to make it basically revenue-neutral despite Bonneville's loss of some electrical power sales. That isn't even on the table. "The conversation about spill," Bogaard says, "is sort of a non-starter."
So, evidently, is a conversation about doing more to counter the effects of climate change. The plaintiffs argue that the BiOp lays out a lot of good information on climate change, but then proposes nothing to deal with its effects. Instead, it says that climate change won't become a problem for fish until after the BiOp's expiration date in 2018, and that actions already planned to deal with the dams' effects will also work against climate change.
The plaintiffs don't buy that. The current effects of the dams and the coming effects of climate change will be cumulative. Therefore, things that will in theory mitigate the former won't be enough to mitigate both. The plaintiffs argue, "NOAA still does not explain or consider how these actions can be credited as both necessary to mitigate for the current non-climate impacts of the hydrosystem and to mitigate for additional climate change impacts."
Earthjustice managing attorney Todd True put it rather more succinctly during a press conference held to announce the filing of the complaint: "You can't spend the same money twice."
Part 2: Would we, could we really knock down dams on the Columbia system?