Judge Sinks Bush Salmon Plan

By J.R. Pegg

WASHINGTON, DC, May 27, 2005 (ENS) - A federal judge on Thursday rejected the Bush administration's plan to balance the operations of the Columbia River's hydroelectric dam system with the federal government's responsibility to protect and restored imperiled salmon. U.S. District Court Judge James Redden said the $6 billion plan violates federal law, fails to protect salmon and must be rewritten.

"It is apparent that the listed species are in serious decline and not evidencing signs of recovery," Redden wrote in the 58 page ruling.

This is the second time in two years Redden has ruled the federal salmon plan violates the Endangered Species Act.

In 2003, Redden rejected the Clinton administration's plan, which outlined 199 specific measures to be implemented over 10 years to protect salmon and steelhead from the adverse impacts of the federal dam system.

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Sockeye salmon in the Columbia River. Washington State and the Columbia River system mark the southern extent of the current distribution of sockeye salmon in North America. (Photo courtesy WDFW)
Thirteen different salmon and steelhead populations listed as endangered or threatened under the Endangered Species Act live in waters impacted by the 14 federal dams in the Columbia River Basin.

Scientists estimate that each dam kills five to 15 percent of the salmon migrating through it.

Redden determined the Clinton plan violated the Endangered Species Act because there was no certainty the recommended actions would be carried out.

The Bush administration's revised plan, released last November, predicted new technological measures - in particular fish slides - would help protect migrating salmon.

It concluded such measures would allow continued operation of the hydroelectric system without jeopardizing the continued existence of the listed salmon.

The biological opinion supporting the plan allowed NOAA to ignore the impact of the dams' existence and instead only evaluate the impacts of dam operations.

Both impacts were considered in two prior biological opinions.

Redden rejected both the jeopardy finding and the premise that dams are part of the natural environment.

The National Oceanic and Atmospheric Administration's (NOAA) jeopardy analysis is "arbitrary and capricious and contrary to the law,"Redden wrote, in part because "it does not address the prospects for recovery of the listed species."

In addition, the federal agency failed to show a "reasonable rationale for its departure from its long-standing practices" that considered the dams part of the natural landscape, Redden wrote.

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Lower Granite Lock and Dam on the Lower Snake River. This is one of the walls of concrete that make life difficult for salmon trying to migrate back to the streams where they were hatched. (Photo courtesy USACE)
The plan also contains "flawed critical habitat determinations" for the three listed species that have designated critical habitat, according to Redden.

He found NOAA did not analyze the short-term negative effects of the plan on critical habitat and relied on uncertain long-term improvements to offset short-term degradation.

Finally, Redden wrote that the federal agency determined that the species critical habitat was sufficient for purposes of recovery even though it "did not have the information on in-river survival rates to make that determination."

The decision is a major victory for salmon advocates who argued the Bush plan effectively abandoned the goal of recovering wild Pacific salmon.

"It's a shame when we have to rely on the courts to affirm and uphold some of nature's basic truths, but thankfully Judge Redden has done that," said Jeff Curtis of Trout Unlimited, one of the plaintiffs in the suit. "The take-home message here should be that if we want more fish in the river, we need to provide more of a river for fish."

Administration officials are reviewing the decision, which they could appeal.

Environmentalists plan to use the ruling as fuel for their drive to remove four dams on the lower Snake River. Past biological opinions have acknowledged that breaching those dams would greatly aid the long-term recovery and survival of some of the endangered populations.

"We can have both clean, affordable energy and abundant, wild salmon," said Sara Patton, NW Energy Coalition. "These four out-dated dams produce relatively little electricity."

The Bush administration has been steadfast in its opposition to breaching any dams within the basin.

The ruling comes amid heightened concern about low returns of spring chinook in the Pacific Northwest.

The returns - estimated at some 85,000 - have fallen far short of the federal government's forecast of 250,000.

And another annual salmon controversy - summer spill - is just around the corner. Each summer, federal dam operators "spill" water over the dams to help the migrating fish safely navigate their way down the rivers to the ocean.

Last year the Bush administration tried to cut summer spill, arguing that the practice is of little benefit to the fish and an economic drag on the hydroelectric system.

The move was challenged by salmon advocates and blocked by Redden, who next month will consider a request by environmentalists to boost summer spill.