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 …