Eleven environmental and fishing groups filed a 60-day notice of intent to sue federal agencies over the Columbia River System Operations EIS, record of decision and biological opinion
The Oct. 22 notice identifies numerous violations of the Endangered Species Act, and gives the U.S. Army Corps of Engineers, the Bureau of Reclamation and Bonneville Power Administration 60 days to cure the violations or face legal action.
The 11 groups are represented by Todd True, Earthjustice attorney who has successfully challenged five prior biological opinions over the last two decades, and convinced judges to issue spill orders at lower Snake and Columbia river dams in National Wildlife Federation et al. v. National Marine Fisheries Council et al.
The notice challenges both the EIS and recent rollbacks by the Trump administration to ESA regulations, which are also being challenged in separate lawsuits.
"The latest federal plan for dam operations relies on these new weakened regulations to support its conclusions," an Earthjustice news release on the notice stated.
"Hundreds of thousands of people in the region—including tribes, scientists, energy experts, and fishing businesses—told the agencies to remove the four dams that are causing the most harm to the fish and to our communities. But the Trump administration did not listen and rubber-stamped a plan that yet again fails to take the legally-required actions necessary to protect salmon and steelhead," True said in the release.
But others in the region—including farmers, ports, irrigators, many utilities and central Washington towns that depend on the dams—urged the agencies to keep the dams in place.
"It's disappointing that several of the organizations listed in the notice of intent to sue are groups that have been calling for regional collaboration for the purpose of avoiding endless litigation. This move seems to cast doubt on the good faith nature of the work envisioned by the Northwest governors' four state agreement," Kurt Miller, executive director of Northwest RiverPartners, told NW Fishletter in an email.
The Corps also issued a statement about the intent to sue, saying, "While the Corps does not comment on anticipated litigation, we believe discussions about the future of managing the Columbia River system did not end with the signing of the Record of Decision. This ROD [or decision-making process] is part of the ongoing effort to manage the Columbia River system. The agencies recognize the call for additional collaborative dialogue about the future of salmon recovery, affordable and reliable clean electricity, and economic and cultural vitality for the tribes and other communities who depend on the Columbia River System. The Corps does not believe that continued court actions are productive to continuing this dialogue."
The notice of intent to sue comes just two weeks after governors from Washington, Oregon, Idaho and Montana signed a joint letter agreeing to collaborate in a public process to discuss key issues related to salmon and steelhead recovery in the Columbia Basin, which will likely include another evaluation of breaching the Snake River dams.
In 2016, U.S. District Judge Michael Simon required the agencies to evaluate removing the four lower Snake River dams as part of its EIS. That EIS and biological opinion, finalized Sept. 28 when agencies signed the ROD, found that operation of the 14 federal dams—including the four lower Snake River dams—would not likely jeopardize any listed salmon or steelhead, or destroy or adversely modify their critical habitat. It also found that southern resident killer whales would not likely be adversely affected.
In their final EIS, released July 31, the federal agencies rejected breaching the dams and chose an alternative that attempts to balance fish benefits and energy goals. They also identified the chosen alternative as the environmentally preferable alternative, as it achieves the widest range of environmental benefits and minimizes adverse impacts to the environment, and human health and safety.
Groups filing the notice are American Rivers, Idaho Rivers United, Institute for Fisheries Resources, NW Energy Coalition, Northwest Sportfishing Industry Association, Natural Resources Defense Council, Pacific Coast Federation of Fishermen's Associations, Sierra Club, National Wildlife Federation, Columbia Riverkeeper and Idaho Conservation League.
They say many populations of ESA-listed salmon and steelhead in the Columbia Basin continue to decline, and that some of those species—especially Chinook—are a critical food source for endangered southern resident killer whales, which are also in serious decline.
The notice says that under the ESA "[e]ach federal agency shall . . . insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species."
The notice lists 24 legal reasons that the 2020 biological opinion and record of decision are "arbitrary and capricious and violate the ESA and its implementing regulations." Those range from failing to consider numerous adverse effects to relying on recently revised ESA regulations without any discussion of the changes in the NOAA's rulemaking record.
The notice also says that the action agencies—BPA, the Bureau of Reclamation and the Corps—are violating the ESA in operating the dams. It says the agencies have failed to ensure their actions are not likely to jeopardize listed species. It contends they are taking actions that may affect listed species and their habitat without a valid biological opinion. And it says that the agencies are taking listed species without an incidental take statement.