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NW Fishletter #358, June 6, 2016
 Judge Decides 2014 BiOp: Snake River Dam Breaching Not Ruled Out
The 2014 Biological Opinion was wrong when it claimed that operations of the Federal Columbia River Power System were in compliance with the Endangered Species Act, U.S. District Judge Michael Simon ruled May 4.
Simon also said federal agencies have resisted taking a "hard look" at all reasonable alternatives, including removal of four Snake River dams.
The judge ordered NOAA Fisheries to write a new BiOp and file it with the court by March 1, 2018. The federal action agencies--BPA, U.S. Army Corps of Engineers and U.S. Bureau of Reclamation--must also prepare an environmental analysis that complies with the National Environmental Policy Act by the same deadline.
"Although the court is not predetermining any specific aspect of what a compliant NEPA analysis would look like in this case," Simon wrote, "it may well require consideration of the reasonable alternative of breaching, bypassing, or removing one or more of the four Lower Snake River Dams.
"This is an action that NOAA Fisheries and the action agencies have done their utmost to avoid considering for decades," he continued.
Simon said that for more than 20 years--and in four other biological opinions found wanting--federal agencies have ignored the court's "admonishments" and recycled the same strategy for recovering listed species.
He described the approach as "hydro-mitigation efforts that minimize the effect on hydropower generation operations with a predominant focus on habitat restoration."
However, Simon agreed with the federal defendants in ruling that the 2014 BiOp did not violate the ESA when determining that it did not adversely modify critical habitat and is not likely to adversely affect endangered Southern Resident killer whales.
Among the shortcomings of the 2014 BiOp cited in the court's opinion was its inadequate analysis of the effects of climate change. Any benefits from habitat restoration could be diminished, especially in light of "a recovery standard that ignores the dangerously low abundance levels of many of the populations of the listed species," Simon said.
Federal agencies and others in support of the recovery efforts have argued what matters is that under the 2008 and 2014 BiOps, listed Columbia River salmon and steelhead species are trending towards recovery.
But Simon did not concur. He said the trending standard fails to establish the abundance and growth levels likely needed to sustain recovery, and he called for better quantitative analysis and goals.
The BiOp does not consider "whether the incremental improvements to the currently low abundance levels are sufficient to avoid creating a new risk of harm," the decision said.
The ruling also noted that the Interior Columbia Technical Review Team (ICTRT) "has already identified minimum viable abundance numbers for nearly all populations of the various listed species." But NOAA did not use the team's findings in the 2014 BiOp, he noted, even though it created the team to advise it.
Todd True, of Earthjustice and an attorney for plaintiffs in the litigation, also mentioned to NW Fishletter that the current BiOp did not bother to use the ICTRT recovery goals.
Columbia and Snake River dams. Courtesy CRITFC.
He likened it to going from Seattle to Portland for the first time by just getting in your car and driving. "You might want to know a little more about the trip and how you're getting there," he said.
In a May 4 news release, True called the court's decision a "sharp rejection of yet another illegal federal plan."
"This is a thorough opinion," he told Fishletter, "and an endorsement for a dramatic new direction."
Joseph Bogaard, Save Our Wild Salmon executive director, was even more enthusiastic in the May 4 release. "This ruling is a big win for the people of the Northwest and the nation, and for salmon, for rivers and our Northwest fishing economy and culture," he said.
"A free-flowing lower Snake River and healthy salmon populations would deliver far greater economic benefits" than do dams on the lower Snake River, said the announcement by the plaintiff conservation and fishing industry groups.
On the other hand, Terry Flores, executive director of Northwest RiverPartners (NWRP), said in her May 4 statement that NWRP was "extremely disappointed" in the judge's ruling.
"The decision potentially unwinds years of collaboration between federal agencies, Northwest states and tribes, and other stakeholders," Flores said in the release.
"The ruling does not provide a path forward for the region, other than re-doing the plan's analysis and conducting an evaluation of alternatives, including dam removal, under the National Environmental Policy Act," she added.
NOAA Fisheries and the other federal agencies also said they were disappointed and would have no other comment at this time, according to very brief emailed statement. The statement said the agencies remain committed to recovering the listed species.
Meanwhile, the current BiOp will stay in place until the 2018 plan is approved, the judge's order said.
In two weeks, NOAA Fisheries is to file a proposed schedule with the court of next steps to address the ruling, according to attorney True. The plaintiffs will then have an opportunity to respond to the proposal.
The ruling displays the long list of plaintiffs, defendants and intervenors in its caption, and includes this challenge from the judge to the agencies:
"The Federal Columbia River Power System remains a system that 'cries out' for a new approach and for new thinking if wild Pacific salmon and steelhead, which have been in these waters since well before the arrival of homo sapiens, are to have any reasonable chance of surviving their encounter with modern man." -Laura Berg
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