Still Crying Out for a 'Major Overhaul' after All These Years Salmon and the Fourth Failed Biological Opinion on Columbia Basin Hydroelectric Operations

Abstract

For nearly four decades, national policy has been to restore Columbia Basin salmon devastated by the construction and operation of the Federal Columbia River Power System (FCRPS). In the 1980 Northwest Power Act, Congress declared that salmon restoration was a national priority, and that it would be funded largely through federal hydropower sales. A basinwide plan approved by the Northwest states began the restoration effort in 1982, but since that plan did not focus on wild salmon restoration, it was eclipsed by federal biological opinions (BiOps) after several salmon species were listed under the Endangered Species in the early 1990s. There followed a seemingly endless series of court challenges to the adequacy of the BiOps, most of which succeeded.Although we discuss all of the Columbia Basin ESA salmon court decisions over the last quarter-century, we focus on the 2016 decision, a remarkable 149-page opinion that is a paragon of close judicial review. Judge Michael Simon became the third consecutive federal judge to find the federal BiOp on FCRPS hydroelectric operations wanting, but he did so in much greater detail and scope than did his predecessors. The result was a judicial opinion that could produce substantial changes in the way the federal government approaches ESA compliance of the world’s largest integrated hydroelectric system. Like his predecessors, Judge Simon faulted the federal government for failing to ensure that the mitigation measures in its FCRPS BiOp were “reasonably certain to occur.” In addition, among other shortcomings, he determined that the BiOp failed to 1) employ a proper standard of species recovery in its BiOp, 2) account for the effects of climate change on the mitigation measures in its BiOp, and 3) prepare a programmatic environmental impact statement on the cumulative effects of those measures and reasonable alternatives. Implementation of the Simon opinion, if carried out faithfully, could substantially improve prospects for the recovery of the thirteen ESA-listed salmon runs. The opinion also may establish important ESA precedent concerning the species jeopardy that BiOps are to avoid, the critical habitat that BiOps are supposed to protect, and the relationship between BiOp implementation and procedures necessary to satisfy the National Environmental Policy Act (NEPA). Concerning the latter, perhaps the most arresting aspect of the Simon opinion was the directive that NEPA required an environmental impact statement evaluating the alternative of breaching the four federal dams on the Lower Snake River. However, while a court may order the FCRPS agencies to consider dam breaching as a NEPA alternative, neither the agencies nor a court have authority to order dam breaching, a matter that in the case of federal dams lies exclusively with Congress.