Wednesday, August 3, 2011 | By Tribune and Associated Press
A federal judge in Oregon ruled Tuesday the Obama administration’s attempt to make federal hydroelectric dams in the Northwest safer for protected salmon once again violates the Endangered Species Act.
In a sternly worded ruling, U.S. District Judge James Redden in Portland, Ore., wrote that the plan, known as a biological opinion, is too vague and uncertain on specific steps that will be taken in the future to improve salmon habitat.
Redden added he doesn’t think the government can meet the standards of the ESA by habitat improvements alone, and it is time to consider new options, including removing some of the dams.
The judge left the plan in place through 2013, when federal agencies must come up with more specific projects to help salmon through 2018.
While the dams have provided the West with cheap hydroelectric power for decades, they are also a leading factor in the steady decline in populations of wild salmon, which only account for a small fraction of annual returns anymore. The bulk of the fish returning each year to spawn come from hatcheries.
A spokesman for the National Oceanic and Atmospheric Administration Fisheries Service, which wrote the biological opinion, did not immediately return telephone calls for comment.
Since the 1990s, 14 different species of salmon and steelhead from the Columbia Basin have been protected as threatened or endangered, including Snake River steelhead, spring chinook, fall chinook and sockeye.
Earth Justice attorney Todd True, who represented the conservation and fishing groups that challenged the biological opinion, noted this is the third straight time Redden has rejected the government’s attempt to say the harm caused by the dams can be mitigated by improvements to habitat.
The judge is saying, “It is time to go in a new direction,” True said. “We have been saying that for years. Hopefully the government will get the message now.”
Brooklyn Baptiste, chairman of the Nez Perce Tribe, called the ruling a victory for salmon and people who care about them. The tribe also challenged the biological opinion and, like the fishing and conservation groups, backs breaching the four lower Snake River dams as the best way to recover the imperiled runs.
“For the Nez Perce Tribe the needs of the fish have always come first; that’s what the ESA requires as well,” Baptiste said. “The tribe is hopeful the government will finally prioritize the needs of the fish when it comes to the impacts of the dams on the lower Snake and Columbia rivers.”
The 2010 biological opinion covers 14 federally owned and operated hydroelectric dams on the Columbia and Snake rivers in Oregon and Washington. Under the ESA, a government project like these dams cannot jeopardize the survival of threatened and endangered species. If it does, the government must come up with steps to reduce the harm, known as reasonable and prudent alternatives.
Redden wrote the alternatives proposed by the government, primarily involving improving habitat in rivers, lacked scientific and financial backing. He noted the government had only planned habitat projects through 2013 yet tied predicted survival increases to future projects not yet identified.
He said it is one thing to identify a suite of future projects that can be combined to increase survival but “it is another to simply promise to figure it all out in the future.”
The judge found that lack of credibility and certainty made the overall plan arbitrary and capricious.
Redden kept control of dam operations and made permanent his earlier orders to increase the amount of water spilled over dams to help young salmon migrating to the ocean in the spring and summer. He advised the government to seriously consider whether habitat improvement projects will do enough to make up for fish killed by the dams and to consider stronger actions such as dam removal, increased spill and reservoir drawdowns.
Nicole Cordan, an attorney for the National Wildlife Federation in Portland, said she is hopeful the government and parties to the litigation can begin talks that will lead not only to breaching but also ways to make sure benefits of the dams, such as barge transportation and power production, are replaced.
“It’s the only way we get to resolution,” she said. “It’s the only way to solve this issue and get out of the court room.”
Rep. Doc Hastings, R-Wash., condemned the ruling, saying only Congress has authority to remove dams, and added that such action would harm the region’s economy.
The judge had particularly harsh words for the Bush administration, which abandoned a 2000 biological opinion that recognized the possibility dams might have to be breached to bring back salmon. He warned the government not to repeat that strategy.
“As the parties are well aware, the resulting BiOp was a cynical and transparent attempt to avoid responsibility for the decline of listed Columbia and Snake River salmon and steelhead,” Redden wrote. “NOAA Fisheries wasted several precious years interpreting and reinterpreting the ESA’s regulations.
“Given federal defendants’ history of abruptly changing course, abandoning previous BiOps, and failing to follow through with their commitments to hydropower modifications proven to increase survival (such as spill) this court will retain jurisdiction over this matter to ensure federal defendants develop and implement the mitigation measures required to avoid jeopardy.”