The lower Snake: 'a system that cries out for a new approach'

More than 20 years ago, Judge Marsh admonished that the Federal Columbia River Power System ‘cries out for a major overhaul.’
— Judge Michael Simon

It's been a long, hard road, but things started looking brighter for Idaho's endangered wild salmon and steelhead earlier this month.

On May 4, federal district Judge Michael Simon ruled in favor of IRU and our allies and gave the federal government a harsh rebuke for it's 20-year record of failed salmon policies. At the most basic level, Simon ruled that the government failed to write a legal jeopardy standard that shows it will not imperil listed salmon with its dams. Simon also found that the government's top scientists failed to use the best available science to weigh the impacts of climate change.

Perhaps most notably, Simon charted a new course for endangered salmon when he ruled that the government must write an environmental impact statement (EIS) to weigh further actions that will be considered and/or implemented to stop the slide toward extinction of the Northwest's most iconic fish.

"Although the Court is not predetermining any specific aspect of what a compliant NEPA analysis would look like in this case, it may well require consideration of the reasonable alternative of breaching, bypassing, or removing one or more of the four Lower Snake River Dams," Simon wrote. "This is an action that NOAA Fisheries and the Action Agencies have done their utmost to avoid considering for decades."

Any NEPA analysis will, by law, include extensive opportunities for public involvement, and IRU members and supporters will be integral to making sure that dam breaching is squarely on the table during this process as it unfolds (please stay tuned in the months ahead).

In case you're not in the mood to read Simon's 149-page ruling, we've compiled the following list of quotes to help you work through this big win for Idaho's salmon.

 

on 20 years of failure

  • "More than 20 years ago, Judge Marsh admonished that the Federal Columbia River Power System 'cries out for a major overhaul.' Judge Redden, both formally in opinions and informally in letters to the parties, urged the relevant consulting and action agencies to consider breaching one or more of the four dams on the Lower Snake River. For more than 20 years, however, the federal agencies have ignored these admonishments and have continued to focus essentially on the same approach to saving the listed species.... These efforts have already cost billions of dollars, yet they are failing. Many populations of the listed species continue to be in a perilous state." (Pp. 18-19)
Despite billions of dollars spent on these efforts, the listed species continue to be in a perilous state.
— Judge Michael Simon
  • "For more than 20 years, NOAA Fisheries, the Corps, and BOR have ignored the admonishments of Judge Marsh and Judge Redden to consider more aggressive changes to the FCRPS to save the imperiled listed species. The agencies instead continued to focus on essentially the same approach to saving the listed species--minimizing hydro mitigation efforts and maximizing habitat restoration. Despite billions of dollars spent on these efforts, the listed species continue to be in a perilous state." (Pp. 145-146)
The 2014 BiOp continues down the same well-worn and legally insufficient path taken during the last 20 years.
— Judge Michael Simon
  • "The 2014 BiOp continues down the same well-worn and legally insufficient path taken during the last 20 years. It impermissibly relies on supposedly precise, numerical survival improvement assumptions from habitat mitigation efforts that, in fact, have uncertain benefits and are not reasonably certain to occur. It also fails adequately to consider the effects of climate change and relies on a recovery standard that ignores the dangerously low abundance levels of many of the populations of the listed species." (Pp. 18-19)

 

Insufficient Jeopardy Standard

The Federal Columbia River Power System remains a system that ‘cries out’ for a new approach and for new thinking if wild Pacific salmon and steelhead ... are to have any reasonable chance of surviving their encounter with modern man.
— Judge Michael Simon
  • "The 'trending toward recovery' standard fails to consider the concerns expressed by courts and NOAA Fisheries relating to the dangers of sustained low abundance levels. The standard also does not include any consideration of the actual abundance numbers of the fish, but merely ascertains whether the existing population is growing at any detectable rate. Without a 'full analysis' of the risks to recovery from whatever amount the population is growing, including proper consideration of the 'highly precarious status' of the species and the dangers of sustained low abundance, NOAA Fisheries’ conclusion that any population that is 'trending toward recovery' necessarily is not appreciably reducing the species’ likelihood of recovery is arbitrary and capricious." (P. 47)
NOAA Fisheries relied on habitat mitigation projects achieving the exact amount of extremely uncertain survival benefits required to avoid jeopardy.
— Judge Michael Simon
  • "The flaws in the 2014 BiOp with respect to habitat improvement projects are not that NOAA Fisheries relied on habitat mitigation efforts to avoid jeopardy, but that some of the habitat projects relied on are not reasonably certain to occur and that NOAA Fisheries relied on habitat mitigation projects achieving the exact amount of extremely uncertain survival benefits required to avoid jeopardy." (P. 85)

 

Climate Change

  • "The Court finds that NOAA Fisheries’ assertion that the effects of climate change have been adequately assessed in the 2014 BiOp is not 'complete, reasoned, [or] adequately explained.'  NOAA Fisheries’ analysis does not apply the best available science, overlooks important aspects of the problem, and fails properly to analyze the effects of climate change, including: its additive harm, how it may reduce the effectiveness of the reasonable and prudent alternative actions, particularly habitat actions that are not expected to achieve full benefits for decades, and how it increases the chances of an event that would be catastrophic for the survival of the listed endangered or threatened species." (P. 15)
NOAA Fisheries has information that climate change may well diminish or eliminate the effectiveness of some of the BiOp’s habitat mitigation efforts, but it does not appear to have considered or analyzed that information.
  • "NOAA Fisheries has information that climate change may well diminish or eliminate the effectiveness of some of the BiOp’s habitat mitigation efforts, but it does not appear to have considered or analyzed that information. NOAA Fisheries also did not explain why the 'warm ocean scenario' that it rejected was not more representative of expected future climate conditions. Notably, ISAB commented to NOAA Fisheries that even the 'warm ocean scenario' may not be sufficiently pessimistic for a sound scientific analysis." (P. 15)

 

Environmental Impact Statement

  • "One of the benefits of a comprehensive environmental impact statement, which requires that all reasonable alternatives be analyzed and evaluated, is that it may be able to break through any logjam that simply maintains the precarious status quo." (Pp. 18-19)
Judge Redden repeatedly and strenuously encouraged the government to at least study the costs, benefits, and feasibility of such action, to no avail.
— -Judge Michael Simon
  • "Although the Court is not predetermining any specific aspect of what a compliant NEPA analysis would look like in this case, it may well require consideration of the reasonable alternative of breaching, bypassing, or removing one or more of the four Lower Snake River Dams. This is an action that NOAA Fisheries and the Action Agencies have done their utmost to avoid considering for decades. Judge Redden repeatedly and strenuously encouraged the government to at least study the costs, benefits, and feasibility of such action, to no avail." (P. 136)
It is doubtful the Action Agencies could demonstrate that breaching, bypassing, or removing one or more of the Snake River dams is not ‘reasonable’ under NEPA.
— Judge Michael Simon
  • "It is this combination of the need of the consulting agency under the Endangered Species Act (here, NOAA Fisheries) to address and cure the continuing deficiencies in its biological opinions, including the 2014 BiOp under review, and the opportunity presented by requirement under the National Environmental Policy Act that the federal action agencies (here, the Corps and BOR) prepare a comprehensive environmental impact statement that evaluates a broad range of alternatives that may finally break the decades-long cycle of court-invalidated biological opinions that identify essentially the same narrow approach to the critical task of saving these dangerously imperiled species." (Pp. 10-11)
  • "It is doubtful the Action Agencies could demonstrate that breaching, bypassing, or removing one or more of the Snake River dams is not 'reasonable' under NEPA." (P. 137)