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Environmental Law

: ESA Blawg

Obama Administration announces "insurance policy for the fish" in FCRPS salmonid litigation

By Keith Rizzardi

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In May 2009, U.S. District Court Judge James A. Redden appeared ready to rule against the Federal Defendants in the ongoing litigation over the Federal Columbia River Power System (FCRPS), and its impacts upon salmonid species. As explained in a prior ESA blawg, the Judge's May 2009 letter to the parties represented an unusual acknowledgement of political reality, and "gave the Obama Administration an opportunity to take another look at the circumstances, and to reconsider the current course" that was reflected in the 2008 Biological Opinion (BiOp) -- the latest in a series of challenged agency actions. The new administration seized the opportunity. The new political leadership from the federal agencies, as well as the White House Council on Environmental Quality, reviewed the existing science, BiOp and legal issues, conducted site visits, held many internal briefings, and even listened to the viewpoints of the parties to this litigation. The result was yesterday's announcement of a new Adaptive Management Implementation Plan (AMIP). See salmonrecovery.gov. As explained in a recent Court filing, using the reasonable and prudent alternative (RPA) provisions of the BiOp, the AMIP:

Immediately accelerates and enhances particular RPA actions;
Enhances research, monitoring and evaluation (“RM&E”) to increase and improve the data and analytic tools available to gauge salmon and steelhead status and to inform responses, if the fish are declining;
Establishes new biological triggers that, when exceeded, will activate near- and long-term responses to address significant fish declines;
Identifies and establishes the process for implementing those near- and long-term responses if a trigger is exceeded; and
Includes a wide range of specific rapid response and longer-term contingency actions, including the potential for John Day drawdown and lower Snake River dam breaching.

Notably, if the significant decline triggers are exceeded, the Federal agencies could implement a number of "rapid response actions" to reduce the take of salmonid species, including predation management to reduce impacts from sea lions, avian predation, and sport-fishing, increased restrictions on harvest from river and ocean fisheries, or changes to hatchery management. For an overview of the AMIP, click here.

Formally responding to the letter from Judge Redden, the U.S. Department of Justice also filed a document resembling a traditional summary judgment brief, explaining the AMIP in detail, and asking the Court to grant summary judgment to the Federal Defendants:
The Administration appreciates the Court’s patience in allowing an in-depth review of the FCRPS BiOp to occur. After this review, the course is clear. The FCRPS BiOp as implemented through the AMIP meets the requirements of the ESA, and is a significant step forward for listed salmon and steelhead in the Columbia and Snake River basins. Our focus for the future should be on implementing actions to benefit listed salmon and steelhead through the BiOp's collaborative and adaptive management processes, instead of diverting limited resources to perpetuate the cycle of litigation that has plagued this region for over 15 years. It is time to put the litigation aside and allow the States, Tribes, and this new Administration to work for salmon and steelhead. The Court should grant Federal Defendants’ motion for summary judgment.

Photo of orca eating salmon from www.orcanetwork.org

KEITHINKING: While the blogosphere seems to be digesting the announcement, news reports suggest that the litigation is far from over. Generally supportive of the proposal, the Editorial Board at Oregon's The Stump says its time to get the issue out of the courtroom, and the lead to the AP wire story calls the approach "a tougher conservation plan for the Pacific Northwest that includes monitoring for climate change and possible dam removal." However, in a potential kiss-of-death for the environmentally-minded, The New York Times says that "Obama follows Bush" and that the AMIP "affirmed basic elements of a recovery plan set forth last year by the Bush administration." Echoing the Gray Lady,the The Los Angeles Times, reports that "some conservationists aren't satisfied." While the Northwest River Partners, a voice for many business-oriented perspectives, called the plan expensive, but actually beneficial to the fish, EarthJustice seems ready to call the AMIP a complete failure. OregonLive.com has returned to "tear down the dams" editorials, but in fact, the AMIP actually acknowledges that breaching the dams could be a long-term option, though certainly NOT a preferred option:
One Long-term Contingency Action in the event there is a significant decline in the status of a Snake River species, is a science driven study of breaching one or more of the lower Snake River dams. This is considered acontingency of last resort and would be recommended to Congress only when the best scientific information available indicates dam breaching would be effective and is necessary to avoid jeopardizing the continued existence of the affected Snake River species, taking into account the short-term and long-term impacts of such action. Additionally, a study of lower Snake River dam breaching will also have to consider the federal government’s Treaty and Trust responsibilities to Indian Tribes, and compliance with other statutory and regulatory requirements. It is reasonable to study breaching of lower Snake River dam(s) as a contingency of last resort because the status of the Snake River species is improving and the 2008 BiOp analysis concluded that breaching is not necessary to avoid jeopardy. In addition, breaching lower Snake River dams would have significant effects on local communities, the broader region and the environment. It would require a major investment of resources and time. Therefore, any decision to seek the requisite congressional authority must be driven by the “best available scientific information.

MORE KEITHINKING: A vocal minority of environmental groups will remain highly unsatisfied, rejecting this (and any other) form of adaptive management approach, but Judge Redden will probably be inclined to give the administration time (but not a whole lot of time) to prove itself. By the way, in a separate but related and timely story, Discovery News reported today (citing the latest Royal Society Biology Letters) that killer whale populations die without king (chinook) salmon.

These issues are never, ever easy. (BTW, check out this YouTube video of an orca stealing a fisherman's salmon!)

Full post as published by ESA Blawg on September 16, 2009 (boomark / email).