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Endangered Species Act

The Endangered Species Act of 1973 has a long and litigious history in the Columbia River Basin. Twelve specific populations, or evolutionarily significant units, of four species of Columbia River Basin salmon and steelhead, and two resident species, bull trout and Kootenai River white sturgeon, have been listed for protection under the ESA since 1991. Recovery plans have been proposed, biological opinions issued and re-issued, and legal battles fought over what actions, proposed and implemented, should be taken to avoid further jeopardizing the listed species, especially salmon and steelhead directly affected by hydropower dams.

The ESA has been hailed by some as a savior of salmon and the environment that will force necessary sacrifices to benefit society in the long term, and derided by others as a politically manipulated tool of industry to avoid any real sacrifices to protect salmon or the environment. It has become full-employment legislation for many lawyers.

In the Columbia River Basin salmon became the lightning rod of the ESA because salmon are affected by so many human activities, from hydropower to agriculture to land development. What is done under the auspices of the ESA for salmon affects many important economic activities, and therefore stirs controversy. The effort to recover Snake River salmon is the primary ESA battleground, with its undertones of the potential for breaching Snake River dams and for restrictions on logging, agriculture, river navigation and fish harvest.

The decline of Snake River salmon occurred over decades but seemed to accelerate after the 1960s. Anecdotal evidence based on cannery records and harvest reports suggests that in the 1800s about 1.5 million salmon and steelhead returned to the Snake River each year to spawn. In its 1995 Proposed Recovery Plan for Snake River Salmon, the National Marine Fisheries Service noted that the estimated annual returns of spring/summer Chinook declined from 125,000 fish between 1950 and 1960 to just 12,000 fish in 1979 despite increased hatchery production of salmon after 1966. In 1994, the run size of naturally spawning spring/summer Chinook, as opposed to hatchery fish (at the time, the naturally spawning fish were the focus of the ESA), was estimated at just 1,822 fish. That same year; the naturally spawning Snake River fall Chinook run was estimated at just 404 fish — actually an increase from a low of 78 fish in 1990. Snake River sockeye returning to Redfish Lake at the headwaters of the Salmon River, a Snake tributary, were near extinction. The annual run declined from several thousand fish in the 1950s to several hundred in the 1960s to just eight fish in 1993 and one in and 1994 (only one fish returned in 1988, 1989 and 1992, as well). The run rebounded to double-digit numbers in the early 2000s, but still remains close to extinction.

The Columbia River Basin ESA saga began in 1978, when the National Marine Fisheries Service and the U.S. Fish and Wildlife Service considered protecting salmon under the ESA. The agencies began a status review to determine which populations might deserve ESA protection but suspended it in 1980 in anticipation of the Northwest Power Act, which was under development and which Congress adopted in December of that year. The Act authorized the four Northwest states that share the bulk of the Columbia River Basin to form the Northwest Power and Conservation Council (called the Northwest Power Planning Council until 2003). The Act directed the Council to write a program to mitigate the impacts of hydropower dams on fish and wildlife. The Council adopted the first version of its program in November 1982.

The program included recovery measures for salmon such as spawning habitat improvements, increased artificial production of fish, improved fish bypass systems at the dams and juvenile fish transportation downriver in barges, particularly for Snake River salmon and steelhead. In the mid-1980s, it appeared the Council’s program might be having some success, even though it was only several years old, as adult fish counts at the mainstem dams increased, compared to counts in the 1970s. But the runs began to decline again in the late 1980s, and some populations, particularly Snake River sockeye, which spawn in the mountain lakes at the headwaters of the Salmon River in central Idaho, declined precipitously.

In April 1990, the Shoshone-Bannock Tribe, whose reservation is in southeastern Idaho and who historically fished in the headwaters area of the Salmon River, petitioned the National Marine Fisheries Service to list the sockeye as an endangered species. Two months later, petitions to list Snake River spring, summer and fall Chinook as threatened species were filed by a coalition that included Oregon Trout, the Oregon Natural Resources Council, the Northwest Environmental Defense Center, American Rivers, and the American Fisheries Society. Through the 1990s, one salmon or steelhead population after another was listed for protection under the ESA as run sizes continued to decline. Kootenai River white sturgeon and bull trout also were listed for protection. Eventually, the Columbia River Basin salmon and steelhead listings totaled 12, including:

In response to the Snake River salmon listings, in January 1992 the National Marine Fisheries Service, which implements the ESA for salmon and steelhead, appointed the Snake River Salmon Recovery Team to make recommendations for the recovery of the fish. The team included three fisheries scientists, two engineers and a natural resource economist. Members came from Idaho, Oregon, and Washington. The Team was chaired by Donald E. Bevan, Professor Emeritus of Fisheries and Marine Affairs at the University of Washington. The team worked for 27 months and released its draft recommendations on October 20, 1993 for scientific peer review. The final recommendations, which incorporated revisions based on the peer review including updated scientific information and new analysis, were completed in May 1994. The recommendations formed the basis of the Fisheries Service’s Proposed Recovery Plan for Snake River Salmon, issued in March 1995.

The Recovery Team’s 1993 recommendations included a number of short-term and long-term actions to assist the salmon toward recovery that later were incorporated into the draft recovery plan. The team said irrigation water diversions needed better fish screens, and grazing and livestock-handling practices needed improvement, as did mining and forestry practices, to protect spawning and rearing habitat for salmon. The Recovery Team also recommended improved hatchery practices, reduced harvest of the listed species and changes in fishery management to take pressure off the weak stocks and focus on stronger stocks through, for example, terminal fisheries — fishing directed at a particular stock in a particular place. These were reasonable actions that portended better survival of juvenile and adult fish.

Some environmental interests thought the recommendations did not go far enough to protect salmon, and some economic interests thought the recommendations went too far in some respects and not far enough in others. By far the most controversial of the Recovery Team’s recommendations were those concerning salmon passage at the mainstem Snake and Columbia river dams. The team recommended that river flows should be managed to provide maximum benefit for salmon, and new sources of water should be secured to provide additional flows in the Snake. Juvenile fish collection needed to be improved at the dams for purposes of barging fish downriver, and barge designs needed to be improved to lower the stress on the transported fish, the team recommended. And, the team said, fish barging, as opposed to Snake River reservoir drawdowns, was the best option for improving fish survival past the dams.

The recovery team concluded that while “. . .drawdown of the four Snake River reservoirs to river level (or removal of the dams) is the alternative which might provide the ‘suitable conditions’ for in-river migration of the smolts through the lower Snake River. . . tests would probably be needed to determine if transport around the four lower dams would be better than leaving the fish in the river.” The testing would take time, and so in the interim “. . .improved collection and transport of smolts around most of the Snake and Columbia river dams is the alternative that would deliver the maximum number of smolts to the lower Columbia River.” This, too, was reasonable, but there was a problem: the benefits of drawdown could only be theorized until testing could occur and, Catch 22, testing could not be conducted without real fish in the river — threatened and endangered species that might die in the testing. “If someone does come forward with a scientifically sound design for a biological test of drawdown, then it might be appropriate to conduct the test and put off decisions until the test is completed,” the team wrote. The Corps of Engineers had conducted a drawdown test at Lower Granite Dam in March 1992, but that was a structural test to learn about potential impacts to shorelines and the navigation channel, not a biological test because in March there are virtually no juvenile fish in the river.

Drawdown of the Snake River reservoirs, or breaching the dams, was the ESA lightning rod in the Columbia Basin. Idaho’s Governor Cecil Andrus, Idaho environmentalist Ed Chaney, and other salmon advocates pushed for Snake River dam drawdowns at the 1991 SALMON SUMMIT, which was convened by U.S. Senator Mark Hatfield, R-OR, in an effort to devise a regional response to the Snake River salmon listings that might be accepted by the Fisheries Service as a recovery plan. The Salmon Summit produced only recommendations, no recovery plan and, importantly, no endorsement of drawdowns. Drawdown advocates remained convinced that the best way to improve the survival of the listed fish as juveniles migrating to the ocean was to speed their passage past the four federal dams on the lower Snake River by drawing down the reservoirs, thus increasing the water velocity and spilling the fish over the dams.

Following the Salmon Summit, Chaney’s organization, the Northwest Resource Information Center, sought a preliminary injunction against the Fisheries Service to stop the barging of juvenile fish and force a decision on drawdowns. On April 30, 1993, U.S. District Judge Malcom Marsh denied the motion on the grounds that the Fisheries Service’s approval of a permit for the Corps of Engineers to collect and barge the ESA-listed fish was neither arbitrary nor capricious given conflicting scientific evidence about whether barging was good or bad for the fish.

The Salmon Summit recommendations passed to the Northwest Power and Conservation Council to incorporate into a revision of its Columbia River Basin Fish and Wildlife Program. The Council, like the Recovery Team, did not endorse the drawdown concept and did not include drawdowns in its subsequent program revisions, which the Council accomplished between 1991 and 1993.

Following these revisions, drawdown advocates successfully sued the Council. In 1993, the Ninth U.S. Circuit Court of Appeals, which is the court of original jurisdiction for lawsuits against the Council, remanded the fish and wildlife revisions to the Council with instructions to try again, and this time to pay more attention to the recommendations of fish and wildlife managers and Indian tribes — who include drawdown advocates. These instructions were in the dicta, not in the opinion itself, which remanded the revisions on a technical issue regarding the construction of the Council document. The Council revised the program and reissued it in December 1994 with a strategy to test drawdowns and implement them, if warranted by the test results, over a period of six years. This time there was no legal challenge.

Meanwhile, the Fisheries Service issued a series of biological opinions under the ESA beginning in 1993. Biological opinions direct federal agencies to take specific actions, such as fish barging or flow augmentation or spills at dams, to avoid jeopardizing the listed species. In essence, biological opinions take the place of recovery plans while recovery plans are being developed. The Fisheries Service issued biological opinions in 1993, 1995, and 1998. Each was challenged in court. The litigants ran the gamut of affected and interested parties — environmental and fishing organizations, state fish and wildlife agencies, Indian tribes, electric utilities, and river-dependent industries. Everyone, it seemed, found some fault with the government’s plans for salmon recovery. Not surprisingly, salmon advocates thought the government did not go far enough to protect the fish, and others, such as industries that depend on inexpensive hydropower, thought the government went too far in imposing costs and actions that would reduce hydropower generation and, ultimately, raise power rates over the long term.

Critics of the salmon-recovery effort generally, and of the ESA specifically, included electric utilities and energy-intensive industries, including aluminum companies that bought power from Bonneville for their Northwest facilities. Industrialists and environmentalists had the same goal — healthy salmon runs. But the two sides disagreed on virtually everything about salmon recovery, from how it should be accomplished to the interpretation of scientific research results. At root, though, industries wanted to reduce the cost of salmon recovery. They pushed the Bonneville Power Administration to lower its non-power costs, such as fish and wildlife mitigation and recovery, because they added to the cost of Bonneville’s power.

Commercial fishing was another target for those concerned about the cost of salmon recovery. The Fisheries Service had to allow some harvest of the endangered and threatened salmon and steelhead, as they were taken incidentally with more numerous populations in mixed-stock fisheries. If fewer fish were killed, so the logic went, then more would return to spawn. In this logic, over time harvest cutbacks would allow more fish to return to spawn, fish populations would rebound, the cost of fish and wildlife recovery would decline as a result, and Bonneville could lower its rates.

In 1994 aluminum companies sued the Fisheries Service under the ESA seeking to force a halt to commercial fishing. The companies, which were joined in the lawsuit by the Public Power Council, an association of Northwest electric utilities, argued that while Bonneville was spending millions of dollars of ratepayer money to restore runs of endangered salmon, commercial fisheries on the Columbia River were violating the ESA by catching and killing the fish.

But Judge Malcom Marsh of the U.S. District Court for Oregon disagreed. He said the industries and utilities had no standing and threw out the suit. Marsh wrote:

By invoking the ESA they purport to represent the interests of the listed species. Yet when push comes to shove, if the resources became so scarce that truly hard choices had to be made, plaintiffs’ asserted interests in the listed species may yield to . . . their interests in power and water for hydroelectric use. . . .To permit these plaintiffs to proceed with their claims under the ESA would be akin to permitting a fox to complain the chickens have not been fed — sure, he has an interest in seeing the chickens are well fed, but it’s just not the same interest the farmer has, nor is it an interest shared by the chickens.

Attorneys for the plaintiffs, stung by the loss, responded that their clients were being injured by ESA requirements for river flows that aided fish migration but took water away from power generation, thus reducing its supply and increasing its cost. Some aluminum officials even publicly expressed concern for the future of the salmon runs. Ken Peterson, then president of Columbia Aluminum, which operated a smelter at The Dalles, Oregon, said the lawsuit was intended to “stop the squandering of the inheritance of our children.” But the aluminum companies were not credible salmon advocates, as historian Richard White comments in his book The Organic Machine: “When it comes to dams, Mr. Peterson managed to keep his solicitude for the salmon under control. It was gillnetters he sued, not the BPA.”

Meanwhile, the Fisheries Service completed its 1995 biological opinion on hydropower operations. Environmental groups sued and won, forcing another rewrite. In 2000, the Fisheries Service responded with a major revision, and like its predecessors it did not endorse drawdowns or breaching the four federal dams in the Snake River. This time the Fisheries Service attempted to balance the need to generate hydropower against the need to provide sufficient flows at and between the dams to allow safe salmon passage, particularly for the downstream-migrating juvenile fish. At the same time, the U.S. Fish and Wildlife Service issued a biological opinion regarding ESA-listed bull trout in the Columbia Basin and Kootenai River sturgeon.

Because hydropower dam operations in Montana and Idaho affect the listed sturgeon and bull trout as well as salmon and steelhead downstream, the two federal agencies coordinated their biological opinions regarding hydropower operations. The Fisheries Service biological opinion recommended 1) increasing water spills at Snake and Columbia River dams to aid juvenile fish passage (these spill requirements reduce hydropower generation by about 1,000 megawatts, on average, per year, a little more than the previous opinion), 2) acquiring additional water from willing sellers to boost river flows, 3) continuing to transport juvenile fish downstream in barges when that option is likely to provide greater fish survival than inriver migration, 4) adjusting the rate of water releases from storage reservoirs to protect fish that live in and near them, and 5) seeking ways to improve water quality and fish survival in the reservoirs. The biological opinions also recommended increased attention — and spending — on improving spawning and rearing habitat, hatchery reforms to reduce potentially harmful effects on ESA-listed fish (this includes the development genetic management plans), development of terminal or selective fisheries to reduce the harvest pressure on listed populations, and coordination with the Northwest Power and Conservation Council’s Columbia River Basin Fish and Wildlife Program.

Breaching the Snake River dams remained an option, but only if the other actions didn’t work. The Fisheries Service and Fish and Wildlife Service recommended that one-year and five-year implementation plans be developed for the biological opinions, and that checkpoints be established in 2003 and 2008 to determine whether the actions recommended in the biological opinions — there were 199 actions in the Reasonable and Prudent Alternative of the 2000 Opinion — are reversing the decline of the listed species. If not, other and more drastic actions, such as breaching the four lower Snake River dams, would be pursued. But that decision was at least three to eight years in the future, and perhaps longer.

The 2000 Opinion also called for aggressive “offsite mitigation” activities to improve salmon survival away from the hydropower dams in the habitat and at hatcheries. Bonneville, which at the time was spending about $250 million annually to implement the Northwest Power and Conservation Council’s fish and wildlife program, estimated the new Biological Opinion would add $175 million to $190 million in habitat and hatchery expenditures — the offsite mitigation — plus about $100 million per year in other costs such as power purchases to make up for lost hydropower generation as the result of required water spills.

Public reaction was mixed, and the old adversaries again were at polar opposites of opinion. Commercial river users and electric utilities generally supported the Fisheries Service; Indian tribes and environmental organizations generally did not. Scott Corwin of PNGC Power, a consortium of small public utilities that buy power from Bonneville, said he was reassured “to see NMFS listen to their top scientists who say breaching dams will not work. Throwing away 2,300 megawatts of electricity peaking capacity provided by these dams — enough power to run the city of Seattle — will not bring the fish back now, not in five or eight years from now.” On the other hand, Olney Patt, Jr., chair of the Columbia River Inter-Tribal Fish Commission and a Warm Springs tribal member, was critical: “The federal government is taking a regulate-for-scarcity approach just as we’re breaking through on a collaboration-for-abundance plan with the states. The federal agencies can help this effort through less interference and foot-dragging.”

The activities recommended in the biological opinion were detailed in an implementation strategy issued in December 2000, at the same time the Fisheries Service issued its biological opinion. The strategy was issued by the Federal Caucus, a coalition of nine federal agencies that have responsibilities for land, water and electricity and whose activities, therefore, affect the listed species. In early 2001, the Federal Caucus agencies followed up with a draft implementation plan based on the two biological opinions and the strategy.

A few months later, in May, a coalition of 12 conservation and fishing groups filed a lawsuit over the implementation plan — and by extension the biological opinions — contending that the plan was insufficient to reverse the decline of the listed species. The plaintiffs alleged that the plan tipped the balance between hydropower and river flows for salmon and steelhead too far in favor of hydropower, as the biological opinions allow Bonneville to suspend water spills at the dams in favor of hydropower generation if Bonneville declares a power emergency, as it did during a drought in the summer of 2001. The plaintiffs also contended that the Fisheries Service and the Fish and Wildlife Service ignored contemporary scientific thinking about the most effective ways to rebuild fish runs, relied too heavily on non-federal activities to improve habitat and did not commit enough money to the recovery effort.

In June 2003, U.S. District Court Judge James Redden of Portland ruled on behalf of the plaintiffs, chastising the Fisheries Service, which by then had changed its name to NOAA Fisheries, for relying on non-federal offsite mitigation activities that it could not control. Ironically, the primary offsite mitigation is, collectively, the actions directed by the Power Council’s fish and wildlife program. While it is not directed by the federal agencies, the Council and its program are likely to continue. The ESA allows non-federal activities as part of a recovery plan, but only if the listing agency first demonstrates there is a “reasonable certainty” they will occur. NOAA Fisheries did not do that, the judge ruled. Nor did the agency consult with other federal agencies to ensure they would follow through on their required actions in the biological opinion, the judge ruled. He remanded the biological opinion to NOAA Fisheries for revisions, continuing the now-familiar cycle of biological opinion revision and subsequent litigation.

In September 2003, the federal agencies published the 88-page “Endangered Species Act 2003 Check-In Report for the Federal Columbia River Power System.” Published with a notice about Judge Redden’s decision invalidating the 2000 Biological Opinion, the report nonetheless was optimistic about success to date: “Most salmon and steelhead populations listed under ESA and affected by the federal hydrosystem have demonstrated dramatic improvements in productivity since the BiOp,” the report stated, adding: “all of these [listed populations], except Snake River sockeye, are clearly in less jeopardy of extinction today than when they were listed in the 1990s and at the time the 2000 BiOp was implemented.”

The report did not mention the possibility of dam-breaching.

In September 2004, NOAA Fisheries responded to Judge Redden’s remand order with yet another revision of the biological opinion. This one included a new interpretation of what constitutes the baseline of impacts on the listed fish. In this interpretation, the existence of dams is not an issue because the dams were in place when the fish were listed and impacts on survival and recovery activities are determined with dam operations as a baseline. Within this framework, continuing to fix the dams to improve fish passage survival is an option, but removing the dams is not. The decision by NOAA Fisheries to redefine, and lessen, the hydropower system’s responsibilities for species recovery, thus pushing more of the responsibility onto other impacts to salmon, such as habitat, hatcheries and harvest, seemed doomed to invite further litigation. In fact, later that month, when Judge Redden called together the litigants for a status conference on the remand of the 2000 Biological Opinion, he issued an order in advance of the hearing requesting that the litigants to be prepared to answer some leading questions, such as: “Under what legal authority did NOAA Fisheries change the environmental baseline in the Draft Revised 2000 BiOp?” and “What scientific evidence supports the new conception of environmental baseline?” The order also advised: “Plaintiffs, intervenors, states, Treaty Tribes, and other amici curiae may identify and describe their most serious five concerns and e-mail them to the court.” At the hearing, the audience expected fireworks and Judge Redden appeared ready to begin litigating the new draft biological opinion that day, but the hearing was anticlimactic. The revised biological opinion, after all, was still just a draft. The litigants stated their positions, but the inevitable litigation had to wait until the draft biological opinion was issued in final form.

Meanwhile, the fish were not being ignored. The 2000 Biological Opinion remained in force during the remand period, and most of its 199 actions were being implemented, both by federal agencies and through the Power and Conservation Council’s fish and wildlife program. Snake River dam breaching or reservoir drawdowns remained no closer to reality, however, and it seemed certain that advocates would keep up the drumbeat of litigation.

Then, inevitably, the parties that challenged the 2000 Biological Opinion filed suit against the 2004 Opinion, and won. Again. In May 2005, Judge Redden granted summary judgment in favor of the plaintiffs, led by the National Wildlife Federation, ruling that the 2004 Opinion was legally flawed. Clearly, he was not pleased that NMFS/NOAA had decided to rewrite the entire 2000 Opinion rather than fix the narrow problem on which the remand hinged. In his order, the judge wrote:

“I found the 2000 BiOp was flawed because many of the . . . mitigation actions were not reasonably certain to occur and I remanded it to NOAA to correct the flaws. Instead of correcting the flaws, which would have required funding of NOAA’s efforts and active collaboration with the sovereigns, NOAA abruptly abandoned its analytical framework. The new framework ignored ESA regulations and NOAA’s own handbook and, not surprisingly, found that the proposed dam operations would not jeopardize the listed species. This finding eliminated the need for an RPA [Reasonable and Prudent Alternative — the suite of actions that implement the opinion], additional federal funding, or serious collaboration with any of the sovereigns. In sum, NOAA returned to the practice, criticized by Judge Marsh in 1995, or tailoring its framework for analyzing jeopardy in order to reach a no-jeopardy finding.”

In a not-so-veiled slap at the Bush Administration, which supervised the preparation of the 2004 Biological Opinion (the 2000 BiOp was a Clinton-era product), and the Republican-controlled Congress, the judge continued:

If the Executive and Legislative Branches do not allow NOAA to follow the law of the land, NOAA and the Action Agencies will fail again to take the steps that are plainly necessary to do what the ESA requires and what the listed species require in order to survive and recover. We are all aware of the demands of the other users of the resources of the Columbia River and Snake River but we need to be far more aware of the needs of the endangered and threatened species.”

The judge wrote that if the law were not followed, the result would be liability for killing listed species (Section 9 of the ESA prohibits such “takings”), and the courts would be required to run the river, a result that would be “abhorred” by all three branches of government, including the Judicial Branch. The judge urged “cooperation between the parties and all of the three branches of government” in order “to avoid such an embarrassment.”

It was no surprise, then, when the judge ordered the parties to the litigation to collaborate in preparing the next biological opinion. NOAA resisted, arguing that it alone has responsibility for preparing the biological opinion, but in the end the parties did collaborate. The judge required regular reporting of meetings and progress, and these were provided.

The parties expect to complete the new opinion in 2007. The question, of course, is whether the new opinion will withstand the inevitable legal challenge or wind up in the trash with the others.

External link: Endangered Species Act (full text and other links)