A federal judge in Oregon ruled Tuesday that the Obama administration's attempt to make federal hydroelectric dams in the Northwest safer for protected salmon once again violates the Endangered Species Act.
In a sternly worded ruling, U.S. District Judge James Redden in Portland wrote that the plan, known as a biological opinion, is too vague and uncertain on specific steps that will be taken in future years to improve salmon habitat.
Redden added that he doesn't think the government can meet the standards of the Endangered Species Act by habitat improvements alone, and it is time to consider new options, including removing some of the dams.
The judge left the plan in place through 2013, when federal agencies must come up with more specific projects to help salmon through 2018.
Rep. Doc Hastings, R-Wash., condemned the ruling, saying only Congress has authority to remove dams, and added that such action would harm the region's economy.
"With this ruling, Judge Redden has gone farther than ever before in substituting his decades as a lawyer for the combined wisdom of hundreds of biologists and scientists at the federal, state and tribal agencies that joined together to develop this broad, collaborative fish recovery plan," Hastings said.
"Despite broad, collaborative agreement on a recovery plan and years of record, or near record, fish returns, the Pacific Northwest is entrapped in a never-ending circle of litigation and judicial whim," he said. "At some point, reason and common sense need to prevail over an activist judge who is intent on keeping dam removal on the table and keeping this issue tied up in the courtroom for years."
Darryll Olsen of the Columbia Snake River Irrigators Association, which represents agricultural interests and irrigation districts in Eastern Washington, said he believes the specter of dam removal is a red herring, and that Redden's true aim is to get the Bonneville Power Association -- and by extension its customers -- to put more money into fish recovery programs.
"This issue is about money," Olsen told the Tri-City Herald. "Dam breaching has been an empty threat since 1994. At the end of the day, there's no money in dam breaching, nor are there any more fish. ... I don't view this as a favorable ruling for hydropower or rate-payers."
While the dams have provided the West with cheap hydroelectric power for decades, they also are a leading factor in the steady decline in populations of wild salmon, which only account for a small fraction of annual returns anymore. The bulk of the fish returning each year to spawn come from hatcheries.
But Olsen said a variety of factors aside from dams determine annual fish returns, including weather and ocean conditions. He believes that beyond 2013, proponents of the plan will have to make that case.
"Either power operators are going to have to argue dams are not a danger to the survival of the species or they have to spend more money," Olsen said.
A spokesman for the National Oceanic and Atmospheric Administration Fisheries Service, which wrote the biological opinion, said they still were evaluating whether to appeal the ruling.
"We are of course disappointed that the court has not agreed with all of all of our arguments in this long-standing litigation, but the court specifically recognizes that the unprecedented level of regional collaboration over the past few years has provided beneficial measures that help protection for listed species," said Brian Gorman in an email. "We'll continue our efforts to provide protection for salmon and steelhead in the Basin and work toward their recovery."
Since the 1990s, 14 different species of salmon and steelhead from the Columbia Basin have been protected as threatened or endangered.
Earthjustice attorney Todd True, who represented the conservation and fishing groups that challenged the biological opinion, noted this is the third straight time Redden has rejected the government's attempt to say that the harm caused by the dams can be mitigated by improvements to habitat.
The judge is saying, "It is time to go in a new direction," True said. "We have been saying that for years. Hopefully the government will get the message now."
The 2010 biological opinion covers 14 federally owned and operated hydroelectric dams in Oregon, Washington, Idaho and Montana, including dams in the Mid-Columbia on the Columbia and Snake rivers. Under the Endangered Species Act, a government project like these dams cannot jeopardize the survival of threatened and endangered species. Otherwise, it must come up with steps to reduce the harm, known as reasonable and prudent alternatives.
Redden wrote that the alternatives proposed by the government, primarily involving improving habitat in rivers, lacked scientific and financial backing. The judge found that lack of credibility made the overall plan arbitrary and capricious.
Redden kept control of dam operations, and made permanent his earlier orders to increase the amount of water spilled over dams to help young salmon migrating to the ocean in the spring and summer, rather than going through turbines.
The judge had particularly harsh words for the Bush administration, which abandoned a 2000 biological opinion that recognized the possibility dams might have to be breached to bring back salmon.
"As the parties are well aware, the resulting BiOp was a cynical and transparent attempt to avoid responsibility for the decline of listed Columbia and Snake River salmon and steelhead," Redden wrote. "NOAA Fisheries wasted several precious years interpreting and reinterpreting the ESA's regulations.
"Given Federal Defendants' history of abruptly changing course, abandoning previous BiOps, and failing to follow through with their commitments to hydropower modifications proven to increase survival (such as spill) this court will retain jurisdiction over this matter to ensure that Federal defendants develop and implement the mitigation measures required to avoid jeopardy."