In an opinion issued today, Judge James Redden made a point to burn federal agencies on the weak aspects of their plans to offset the environmental impacts of the Columbia River hydropower system. I wanted to list a few of his most barbed remarks. But as Michael Milstein of Bonneville Power Administration pointed out, the judge left the most essential permissions intact so that the hydro system can continue operating all 14 dams in the Columbia River Basin at least until 2014 and continue to kill some salmon incidentally in the course of operations.
The judge seemed most concerned with what will happen from 2013-2018. The National Oceanic and Atmospheric Administration, he wrote, has only identified specific habitat improvement projects through 2013. Beyond that, the agency “improperly relies on habitat mitigation measures that are neither reasonably specific nor reasonably certain to occur, and in some cases not even identified.”
The agencies’ vague promises of habitat improvements after 2013 weren’t enough to assure the judge that fish survival won’t be jeopardized by dam operations. “Federal Defendants do not know what exactly will be needed to avoid jeopardy beyond 2013 or whether those actions are feasible and effective, but they promise to identify and implement something,” he writes. “This is neither a reasonable nor a prudent course of action.”
“Likewise,” he writes, the habitat plans for the Columbia River estuary “are plagued with uncertainty” even though the feds are counting on estuary habitat for 6 to 9 percent improvement in fish survival.
“Moreover,” the judge writes, ” NOAA Fisheries analysis fails to show that the expected habitat improvements – let alone the expected survival increases – are likely to materialize.” Agency documents submitted to the court show that some habitat projects are already behind schedule and others might not have funding. “It’s one thing to identify a list of actions or a combination of potential actions and then modify those actions through adaptive management to reflect changed circumstances. It is another to simply promise to figure it all out in the future.”
“Coupled with the significant uncertainty surrounding the reliability of NOAA’s habitat methodologies, the evidence habitat actions are falling behind schedule, and that benefits are not accruing as promised, NOAA Fisheries’ approach to these issues is neither cautious nor rational.”
The judge showed open distrust of NOAA for its previous actions in approving dam mitigation plans. The 2000 plan “was a cynical and transparent attempt to avoid responsibility for the decline of listed Columbia River salmon and steelhead.”
The agency “wasted several precious years interpreting and reinterpreting the (Endangered Species Act) regulations.” It also attempted to stop spilling water over dams in the summer during that period and continues to resist recommended spill programs, he writes: “Given the Federal Defendant’s 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 measures required to avoid jeopardy.”