Northwest dams are back under the political microscope
In what is likely one of the most sweeping and aggressive interpretations ever made under the Endangered Species Act, U.S. District Judge Michael H. Simon recently found the 2014 Biological Opinion on federal hydrosystem operations flawed. He sent it back to NOAA Fisheries and the federal action agencies for another wholesale do-over.
He also ordered an environmental impact statement that he said “may well require consideration of the reasonable alternative of breaching, bypassing or removing one or more of the four Lower Snake River Dams:’ For all of this, he set an impossible deadline of March 1, 2018.
Simon acknowledged the current BiOp provides benefits to listed fish and kept it in place for now. But ultimately, his ruling returns the Northwest to the hamster wheel of endless analysis and litigation.
RiverPartners, federal and state agencies, tribes and other allies hoped to get a fairer shake in court. An excerpt from Simon’s ruling shows that was not to be:
“More than 20 years ago, Judge Marsh admonished that the Federal Columbia River Power System ‘cries out for a major overhaul: Judge Redden, both formally in opinions and informally in letters to the parties, urged the relevant consulting and action agencies to consider breaching one or more of the four darns on the Lower Snake River. For more than 20 years, the federal agencies have continued to focus essentially on the same approach to saving the species: hydro-mitigation efforts that minimize the effect on hydropower operations with a predominant focus on habitat restoration. These efforts have already cost billions of dollars, yet they are failing. Many populations of the listed species continue to be in a perilous state:’
The “major overhaul” has already occurred. All eight federal mainstem dams have been retrofitted with fish slides and other technologies to the tune of more than $2 billion. Up to 40 percent of the Columbia and Snake rivers are spilled over the dams to speed migrating salmon downstream. Another $1 billion has been spent to restore salmon habitat.
In his ruling, Simon fails to acknowledge the BiOp was the result of unprecedented collaboration and supported by the Obama administration’s top scientists. He fails to give federal agencies the deference the law requires, based on their scientific expertise. He dismisses incredible adult salmon returns the past dozen years, including record returns in 2014 and 2015.
Rather, Simon points to declines in some subpopulations of salmon and cites climate change to conclude the hydrosystem needs to do more. He gives short shrift to the successes of habitat restoration, calling benefits for the fish too uncertain and too slow to arrive. He even suggests the hundreds of millions of dollars for habitat might be better spent on removing Snake River dams.
In reality, only four of the 13 listed species are affected by the Snake dams, and only Congress can authorize and appropriate funds for removal which is unlikely. It is difficult to see how removing dams that provide a significant share of the region’s carbon-free renewable energy would help address Simon’s climate concerns. Although dam removal is far less certain to occur than restoring habitat, that is the path this judge appears to prefer.
So, where do we stand? This is the fifth time a judge in U.S. District Court -Court of Oregon has ruled a salmon plan illegal and “remanded” it for more work. Twenty years of history and Simon’s May 4 decision call into question whether any plan could pass muster in this court. If this BiOp is not good enough, it is hard to imagine one that could be.
The truth is the federal hydro system alone simply cannot overcome all the factors that harm salmon throughout their lifecycle: ocean conditions, over harvest and poor hatchery practices. If the fish are to recover, any “major overhaul must focus on these factors.
By the time you read this, a preliminary injunction likely may have been illed-and possibly granted for more spill over the darns. At best, this provides little benefit at a great cost. At worst, too much spill kills the very fish utility customers spend billions to recover. The environmental and fishing groups suing over the salmon plan know this, but they figure it is worth it if it gets them closer to dam removal. Sadly, it appears Simon has bought into their strategy, hook, line and sinker.
Terry Flores is executive director of Northwest RiverPartners in Portland, Oregon.