Avoiding Dam Breaching through Offsite Mitigation: NMFS's 2000 Biological Opinion on Columbia Basin Hydroelectric Operations

Beginning of article

I. INTRODUCTION

For the past two decades saving Columbia River salmon has been at the top of the Northwest's, if not the nation's, natural resource agenda. Beginning with the enactment of the Northwest Power Act in 1980, (1) and continuing with the promulgation of the Columbia Basin Fish and Wildlife Program in 1982, (2) the ratification of the Pacific Salmon Treaty in 1985, (3) and the Endangered Species Act (4) listings of the 1990s, (5) saving salmon became the focus of federal, state, and restoration efforts. Despite these efforts, wild salmon runs continue to decline. (6) The most controversial recent restoration effort was the promulgation by the National Marine Fisheries Service (NMFS) of a biological opinion (BiOp) in 2000 on five years of Columbia Basin hydroelectric operations and the release of an accompanying nonbinding salmon recovery plan by a federal interagency group known as the Federal Caucus. (7) The 2000 BiOp will govern Columbia Basin hydroelectric operations, the chief cause of Columbia Basin salmon mortalities, (8) during 2001 through 2005.

An earlier BiOp on hydroelectric operation had been struck down in court because of its reliance on overly optimistic assumptions and its failure to consider the views of state and tribal biologists. (9) A revised BiOp survived judicial scrutiny, even though the reviewing court questioned NMFS's willingness to tolerate high risks of salmon extinction. (10) Preparation of the 2000 BiOp became especially controversial when a number of scientific studies indicated that the best means of restoring some of the most imperiled salmon, the Snake River runs, was breaching four federal dams on the lower Snake River. (11) Moreover, several economic studies suggested that breaching the four dams was economically affordable. (12)

The 2000 BiOp on hydroelectric operations did not, however, endorse dam breaching. After an early draft of the BiOp suggested that NMFS would recommend breaching if specific performance standards were not achieved, (13) the final BiOp reversed course, maintaining the performance standards but not promising to recommend dam breaching if they were not met. (14) Since President George W. Bush campaigned specifically against dam breaching, (15) it is likely that whatever the BiOp said about dam breaching in the future may be academic during his presidency. Nevertheless, the BiOp's eschewing of the breaching option prompted lawsuits. (16)

In order to avoid breaching the lower Snake dams, the 2000 BiOp not only adopted a series of performance standards for hydroelectric operations, it relied heavily on non-hydroelectric activities, such as improved hatchery operations and habitat protection and restoration, to conclude that the ensuing five years of the hydroelectric operations would not jeopardize the continued existence of listed salmon runs. (17) These measures, referred to by the BiOp as "offsite mitigation," (18) were promised in the accompanying nonbinding salmon recovery plan developed by a coalition of federal agencies. (19) In effect, the BiOp's justification for its "no jeopardy" conclusion was its link to this nonbinding plan, which was designed to affect agencies other than those controlling the operations of the federal hydroelectric system, the actions that triggered the BiOp. (20) Although this approach reflected an attempt to influence all aspects of the salmon life cycle, it deflected attention from salmon mortalities caused by hydroelectric operations. It also raised serious questions about whether a BiOp may lawfully assign responsibilities for avoiding jeopardy to agencies other than those whose proposed activities triggered ESA consultation requirements. (21)

This Article analyzes the 2000 BiOp and the accompanying Federal Caucus plan. Part II considers the context in which the 2000 BiOp was promulgated, including widespread political opposition to the proposed breaching of the four federal dams on the Lower Snake River. Part III evaluates the BiOp itself, focusing on how NMFS managed to substitute hydroelectric performance standards and "offsite mitigation" for dam breaching and still produce a "no jeopardy" opinion. Part IV discusses the Federal Caucus plan, the success of which is critical to the BiOp's conclusions, and questions whether its promises will bear fruit. Part V evaluates the legal challenges to the 2000 BiOp and suggests that those challenges may succeed. The Article concludes that, even if the BiOp survives court challenges, the numerous uncertainties associated with its implementation make it an unlikely vehicle to restore imperiled Columbia Basin salmon runs. A salmon restoration plan more likely to succeed is that produced by the Columbia River tribes with treaty fishing rights, but that plan has been largely ignored or forgotten. (22) Consequently, it is hard to be optimistic that the promises made about salmon recovery in 2000 will reverse the past twenty years of failure.

II. THE CONTEXT

This Part places the 2000 BiOp on Columbia Basin hydroelectric operations in context by first examining the relevant provisions of the Endangered Species Act (ESA). Then, it explains the previous BiOp on Columbia Basin operations and the ensuing calls for breaching the Lower Snake River dams.

A. A Brief Overview of the Endangered Species Act

All federal agencies have an affirmative duty to ensure that actions they fund, authorize, or carry out are not "likely to jeopardize the continued existence" of listed endangered or threatened species or destroy or adversely modify their critical habitat. (23) To fulfill this obligation, a federal agency must consult with either NMFS or the United States Fish and Wildlife Service (FWS) concerning any proposed action that may affect a listed species or its habitat. (24) A biological opinion is the ultimate product of this consultation, in which the consulting agencies conclude whether a proposed action is likely to "jeopardize the continued existence" of a listed species or adversely modify or destroy its critical habitat. (25) The consulting agencies must use the best available commercial science in making jeopardy determinations. (26)

If a consulting agency concludes that an action will likely cause jeopardy to the species or adverse modification to its critical habitat, the consulting agency must propose "reasonable and prudent alternatives" (RPAs) that will avoid jeopardy or adverse modification. (27) Jeopardy opinions are not legally binding on the action agencies; however, they carry significant weight with reviewing courts. (28) Thus, while action agencies are not required to abide by the consulting agencies' recommendations, their failure to do so will likely result in a court's conclusion that the action agency has violated its duty to avoid jeopardy to listed species. (29)

In addition to avoiding jeopardy and adverse modification, all persons, including governmental agencies at all levels, are prohibited from "taking" endangered animals. (30) Despite this prohibition, government agencies may be excused from liability for taking listed species through an incidental take statement issued in conjunction with a "no-jeopardy" biological opinion. (31) Such a statement may include its own set of reasonable and prudent measures with which an agency must comply to minimize the impact of the allowed take. (32) The incidental take statement may cover any individual acting within its scope, even though the statement is issued specifically to the federal action agency. (33) Nonfederal agencies, private corporations, and individuals may also receive permission to incidentally take endangered animals by submitting a habitat conservation plan (HCP). (34) Based on the adequacy of the HCP and the findings specifically related to the proposed take, the consulting agency may issue an incidental take permit to nonfederal applicants. (35) For both federal and nonfederal actions, the underlying requirement is that incidental takings must avoid jeopardy to the listed species. (36)

B. The Movement Toward Dam Removal

NMFS's implementation of ESA protections through its various BiOps has not led to the recovery of listed salmon. Indeed, at the time NMFS issued its 1995 BiOp on the hydropower operations in the Columbia Basin, (37) only three stocks of salmon had been listed as endangered or threatened under the ESA. (38) Since 1995, NMFS has listed another nine species of Columbia Basin salmon as endangered or threatened. (39) Some critics have argued that these additional listings provide a strong indication, if not conclusive proof, that NMFS's BiOps have failed to stem the decline of salmon. (40)

Even before NMFS issued its 1995 BiOp, however, salmon advocates had begun to call for dam breaching as the only sure way to restore salmon populations. (41) Cecil Andrus, the former governor of Idaho, first suggested that drawing down the four lower Snake River reservoirs in Idaho would improve juvenile salmon survival. (42) His suggestion was followed by a series of scientific reports that became progressively more adamant about the need to restore natural river flows and reduce reliance on artificial transportation. (43) The first plan to call for reservoir drawdowns and restricted artificial transportation was drafted by a coalition of state, federal, and tribal representatives. (44) The plan recommended drawing down the four lower Snake River reservoirs to "minimum operating pools" between April 15 and December 15 of each year and releasing water from upper basin reservoirs for flow augmentation. (45) The plan did not call for dam breaching; subsequent scientific reports, however, rapidly moved in that direction.

In 1994, Indian treaty tribes and state and federal fish and wildlife agencies commissioned an independent scientific peer review to study the artificial transportation program. (46) The resulting report concluded that transportation would not halt the decline of listed salmon in the Snake River Basin. (47) The same year, the Northwest Power Planning Council included seasonal reservoir drawdowns and restricted reliance on artificial transportation in its Columbia Basin Fish and Wildlife Program. (48) In 1995, the National Research Council issued a report that endorsed artificial transportation in the short-term, while advocating for a return to natural river conditions in the long-term to achieve salmon recovery. (49) The treaty fishing tribes of the Columbia Basin, in contrast, offered no such compromise. In their 1995 salmon restoration plan, Wy-Kan-Ush-Mi Wa-Kish-Wit (The Spirit of the Salmon), (50) the tribes called for permanent reservoir drawdowns to restore natural river functions and the immediate end of artificial transportation. (51) The tribes' position found support in two subsequent scientific reports, one conducted by the Council's Independent Scientific Group in 1996 and the other by the Idaho Department of Fish and Game in 1998, both of which advocated a return to "normative river conditions" and an end to artificial transportation. (52) In 1998, NMFS's own scientists confirmed that permanent reservoir drawdowns, that is, dam breaching, offered the best chance for salmon survival and recovery. (53) Thus, by the time NMFS began drafting its 2000 BiOp, considerable scientific evidence favored dam breaching and a decreased reliance on artificial transport. (54)

Political momentum, at least in some arenas, had also begun to swing toward dam breaching. At public hearings held in fifteen locations, including Seattle and Portland, regarding the draft 2000 BiOp and Federal Caucus plan, environmental groups generated numerous comments calling for dam breaching. (55) Oregon's Governor John Kitzhaber echoed their sentiment, reasoning that dam breaching was the only means to ensure survival of imperiled salmon. (56) The Seattle City Council also adopted a resolution calling for the breaching of the four Lower Snake River dams. (57) Finally, just before NMFS released its final 2000 BiOp, a coalition of more than 200 scientists urged former President Clinton to commit to breaching the four dams in the near future, arguing that "the weight of scientific evidence clearly" shows the need for immediate breaching. (58) However, these suggestions were ignored by NMFS.

III. THE 2000 BIOP

On December 21, 2000, NMFS released its BiOp on federal Columbia Basin dam operations and the accompanying juvenile salmon transportation program during the years 2001 to 2005. These dams include those operated by both the Corps of Engineers primarily for flood control, navigation, and hydropower generation, and by the Bureau of Reclamation, whose principal mission is irrigation. (59) The juvenile transportation program is a controversial mitigation measure which collects juvenile salmon in the upper basin, transports them by barge and truck past several dams, and releases them in the lower river below the dams. (60) Some critics charge that the transportation program has been ineffective at reducing the adverse effects the dams have on migrating salmon and masks the adverse effects of the dams by making it appear that there is a serious mitigation program in place. (61)

This Part of the Article examines the BiOp's approach to avoiding jeopardy to listed salmon. Section A discusses NMFS's analysis of the species' status; section B considers its hydropower-related measures; section C examines offsite mitigation measures, the BiOp's principal means of avoiding jeopardy; section D discusses the BiOp's numerous planning and evaluation requirements; and section E explains the expansive "emergency exemption" that allowed the BPA to excuse itself from complying with essential features of the BiOp. (62)

A. The Status of Columbia Basin Salmon

A critical component of the 2000 BiOp was NMFS's evaluation of the salmon's current status and the likelihood that the species would survive as a result of the proposed agency actions and implementation of the RPA. In the 2000 BiOp, NMFS applied a five-step process that was developed in the 1995 BiOp for applying the jeopardy standard to listed salmon. (63) The five steps were 1) defining the current status and biological requirements for each listed species, 2) evaluating the "environmental baseline" and its relevance to the species' current status, (64) 3) ascertaining the effects of the proposed action on listed species, 4) determining whether the species could be expected to survive under the effects of the proposed action, in combination with the environmental baseline and other cumulative effects, and 5) specifying reasonable and prudent alternatives where an action was likely to jeopardize the continued existence of a listed species. (65)

The starting point of this process, and indeed, a primary basis for the biological opinion, was NMFS's assessment of each species' status and risks. The risk calculation determines whether a proposed action will result "in a high likelihood of survival and a moderate to high likelihood of recovery for a listed species." (66) NMFS's definition of survival, therefore, had particular importance in analyzing the status of the species and the effects of the action.

NMFS defined survival based on the risk of absolute extinction within 100 years. (67) In other words, survival only means that more than one adult fish of a species will return to spawn over a salmon generation. (68) NMFS rejected other possible assessments of survival, including assessments based on quasi-extinction levels such as 20, 50, or 100 fish, reasoning that the "extinction threshold of one fish is the only extinction threshold that has the same biological meaning regardless of which index stock or population is addressed." (69) Thus, under the 2000 BiOp's one-size-fits-all approach, an action will result in a high likelihood of survival as long as more than one fish returns over a salmon generation.

Having defind an extremely low threshold for the term survival, NMFS then laid out a series of measures that the action agencies (and other federal, state, tribal, and local agencies not bound by the 2000 BiOp) must take to ensure the species' survival. While some of the measures specifically addressed the proposed action itself--Columbia Basin hydroelectric operations--many more involved actions independent of the proposed action. The following three sections discuss these measures.

B. Hydropower-Related Measures

The principal statutory mission of a BiOp is to ensure that federal actions avoid jeopardy to listed species. (70) The 2000 BiOp made "no jeopardy" determinations for the juvenile transportation program and for dam operations on four listed salmon species which spawn in the lower river below the dams. (71) But for eight upriver-spawning salmon species, NMFS concluded that proposed federal dam operations would likely jeopardize the continued existence and adversely modify designated critical habitat. (72) As a result, NMFS developed a "reasonable and prudent alternative" (RPA) under which dam operations could continue without jeopardizing the eight upriverlisted salmon species. (73)

Most RPAs attempt to minimize the effects of proposed actions by changing the actions themselves. However, because earlier BiOps concerning Columbia Basin dam operations had made small changes in river flows without abating the decline of listed salmon, (74) NMFS broadened the scope of the 2000 RPA to address many factors unrelated to dam operations that contribute to the salmon's decline. Consequently, the new RPA specified relatively few operational changes to the dams, and those changes it did call for were often technical in nature. (75) A significant feature of the RPA was its reliance on annual plans, evaluations of ongoing actions, studies of possible alternatives, and calls for funding of offsite mitigation measures. Although these measures facilitate an adaptive management approach to salmon restoration (76) and give NMFS an oversight role concerning implementation of other agencies' actions, they also make it difficult to evaluate the sufficiency of the RPA, as it is unclear what concrete actions might result from the RPA's numerous studies, evaluations, reports, and requests for funding. Nor is it clear that reliance on future speculative responses to those studies is sufficient to satisfy the ESA's requirement of avoiding species jeopardy. (77)

NMFS acknowledged that the RPA's hydropower measures will not by themselves avoid species jeopardy caused by hydroelectric operations since significant dam-caused mortalities will continue. (78) Thus, NMFS concluded that additional non-hydroelectric system measures--the "offsite mitigation" proposed in the basinwide recovery strategy accompanying the BiOp--would be necessary to avoid jeopardy. (79) AS a result, most of the 199 actions in the RPA called for offsite mitigation, and many involved studies instead of remedial actions. Further, several of the studies had no specified completion dates, (80) which may be a consequence of the uncertain authority NMFS possesses to require agencies not subject to section 7 of the ESA, including nonfederal agencies, to undertake offsite mitigation.

The centerpiece of the RPA was a series of performance standards by which NMFS will judge the success of the 2000 BiOp. These standards were of three basic types: 1) population-based standards, aimed at producing populations adequate to ensure likely survival and recovery, 2) life-stage standards, which allocate restoration burdens among the hydroelectric system, habitat, harvest, and hatcheries (the four Hs), and 3) specific standards within each of the four Hs. (81) For example, a hydropower-specific performance standard for spilling water at a particular dam to facilitate dam passage might require that two-thirds of adult and juvenile fish survive dam passage. Spill that did not achieve that level of survival would not meet the performance standard.

The RPA further divided performance standards into biological, physical, and programmatic standards. Performance standards measure the action agencies' success in implementing the requirements of the RPA and serve, in essence, as a means for NMFS to assess the agencies' adherence to the BiOp. (82) Physical standards represent the health of the Columbia Basin ecosystem and include such parameters as instream flow levels, access to habitat, and riparian conditions. (83) As with the performance standards, however, the 2000 BiOp did not set any target levels or parameters for evaluation. (84)

Biological standards evaluate the health and viability of salmon, including measuring abundance, productivity trends, species diversity, and population distribution. (85) NMFS was unable to establish optimal levels, so it established a two-part surrogate test: 1) whether a population's rate of growth is greater in 2005 or 2008 than it was in 2000; and 2) whether the growth rate is greater than NMFS projected it would have been under the 1995 BiOp. (86) The key biological performance standard under this two-part test is what the agency called "lambda," that is, increases or decreases of life-cycle survival and annual population growth or decline. (87) Lambda basically represents a stock's current productivity based on observed populaton abundance. (88)

The draft BiOp proposed to use lambda as the basic measurement of its succcess--if lambda was at least 1.1 NMFS would consider BiOp succesfull. (89) On the other hand, if lambda was 0.95 or below, NMFS would issue a failure report. (90) However in response to comments on the draft BiOps, NMFS diluted the significance of lambda, stating only that after five years it would measure "wheter population growth rate has improved enough relative to the level estimated in this biological opinion to maintain a high likelihood achieving the 2008 performance standards." (91) This determination would be the product of a complex four-part test. (92)

The RPA's biological performance standards related to the hydroelectric system concerned estimated juvenile and adult survival standards NMFS expected from the best or most extensive actions that are biologically feasible and whithin the authority of the federal hydroelectric agencies. (93) Over a period of ten years, NMFS will assess the survival levels, comparing survival rates from 2000 with survival rates in 2005 and 2008. (94) From this comparison, NMFS anticipated that it would be able to determine if the actions specifically related to the hydrosystem are effectively abating salmon decline. (95) However, NMFS provided no indication of what level of survival it would consider a success or failure.

1. Flow Objectives

The key hydroelectric operational requirements were the RPA's flow objectives, which NMFS basically adopted from the operating agencies' proposal. (96) The flow objectives for the Snake River at Lower Granite Dam ranged from 85 to 100 thousand cubic feet per second (kcfs) in the spring and 50 to 55 kcfs in the summery. (97) Flow objectives for the Lower Columbia were 220 to 260 kcfs in the spring, 200 kcfs in the summer, and 125 to 160 kcfs in the winter. (98) For the Upper Columbia, the RPA set a spring flow objective of 135 kcfs. (99) Specific flows within each of these ranges will be a function of forecasted water volume. (100) The RPA stated that the operating agencies will operate their dams and reservoirs "with the intent of meeting the flow objectives ... on both a seasonal and weekly average basis." (101) To accomplish these objectives, the operating agencies must 1) limit winter and spring drawdowns to increase spring flows and the probability of reservoir refill, 2) draft storage water from reservoirs in the summer to increase flows, and 3) provide minimum flows in the fall and winter to support mainstem spawning and incubation in the lower river below Bonneville Dam. (102) The RPA made clear that the flow objectives were not "hard constraints." (103) For example, it authorized drafting of reservoirs inconsistent with the flow objectives during water flow emergencies. (104)

The RPA devoted specific attention to the ability of the Bureau of Reclamation (Bureau) to contribute water to increase streamflows. For example, the RPA enjoined the Bureau from contracting any additional water and required biological consultation on all renewals. (105) The Bureau must also 1) work to reduce streamflow depletions for its contracts, 2) pursue water conservation measures, 3) acquire water through purchases or changed operations from its upper Snake River projects, and 4) develop a plan to reduce illegal water use through "water spreading" within two years. (106) In addition, the RPA instructed the Bureau to install screens at canal intakes by March 2002, assess the water quality of irrigation return flows and submit to NMFS a detailed water quality plan by June 2001, and investigate the attraction of listed species into wasteways and implement any necessary structural or operational changes. (107)

The RPA directed the Corps of Engineers (Corps) to conduct a flood control assessment analyzing the feasibility of modifying flood control operations to produce a high probability of reservoir refill while still providing high levels of flood protection. (108) Similarly, a revised operational plan for the Corps's Libby Dam aimed to lower the chance of overdrafting that reservoir in the fall, and to increase the probability of refilling the reservoir the following spring and summer. (109)

2. Water Quality Measures

Poor water quality, especially due to high water temperatures and high levels of dissolved gas, is a major cause of Columbia Basin salmon mortalities. (110) While the RPA recognized the importance of reducing both temperature and dissolved gas levels for salmon survival and recovery, (111) it was not very specific how these reductions would occur.

The RPA established a goal of achieving 110% of total dissolved gas in all salmon critical habitat within ten to fifteen years. (112) Achieving this goal would require completion of an ongoing Corps dissolved gas study and continued monitoring. (113) The RPA stated that if studies show that spill deflectors effectively reduce gas levels, the Corps should seek funding to construct them. (114) For temperature, the RPA called for the operating agencies to "move toward" achieving water quality standards in the short-term and meet the standards in the long-term. (115) But the only specific requirement the RPA imposed was for the operating agencies to study the effects of high temperatures on salmon and "work …