Oregon Federal Court’s ESA Decision Will Impact Dam Operations in Pacific Northwest

The United States District Court for the District of Oregon recently issued a decision which will impact operation of the Federal Columbia River Power System and its fourteen dams located in the Snake River basin and the upper and lower Columbia River basin. In National Wildlife Federation v. National Marine Fisheries Service, the court granted summary judgment to the plaintiffs and declared that the no-jeopardy conclusion in the National Marine Fisheries Service’s (NMFS) biological opinion for action agencies’ operation of the FCRPS was arbitrary and capricious. The court found NMFS’s definition of the “action area” was inconsistent both with regulatory requirements and the geographic region considered by NMFS in justifying the no-jeopardy conclusion. The court also found that NMFS improperly relied on range-wide, off-site federal mitigation actions that had not undergone Endangered Species Act section 7 consultation and non-federal mitigation actions that were not reasonably certain to occur.

Case Overview

In this case, a coalition of fishing and conservation groups claimed NMFS violated the ESA and Administrative Procedures Act (APA) arbitrarily, capriciously and without any rational basis when it concluded that the 2000 BiOp avoided jeopardy. The 2000 BiOp stated that the proposed operation of federal dams and reservoirs jeopardized the existence of eight of the twelve ESA-listed salmon and steelhead stocks in the Columbia Basin. However, the document prescribed reasonable and prudent alternative courses of action (RPA) that NMFS concluded would avoid jeopardy and adverse modification of the critical habitat of fish. In conjunction with the RPA, NMFS issued an Incidental Take Statement for take of salmon related to FCRPS operations, but did not authorize incidental take of salmon related to off-site mitigation activities.

Under the 2000 BiOp, NMFS was required to assess the biological impact of the FCRPS operations on all areas to be affected directly or indirectly by the federal action, and not merely the immediate area involved in the action. The court found NMFS’s definition of the action area in the 2000 BiOp was unreasonably narrow and limited to the immediate area (i.e. the Columbia and Snake Rivers), contrary to the ESA requirements.

The court also found NMFS should not have relied upon proposed range-wide, offsite mitigation actions as part of its “cumulative effects” analysis in justifying the nojeopardy conclusion in the 2000 BiOp. The absence of any binding commitments by States, Treaty Tribes, and private parties to fund or implement the mitigation measures relied upon by NMFS supported the court’s conclusion that the range-wide off-site mitigation actions were not reasonably certain to occur. The court found that while the 2000 BiOp’s monitoring program of 3-, 5-, and 8-year check-ins was a laudable effort, it did not supplant the requirement that NMFS rely only on federal mitigation actions that have undergone section 7 consultation and non-federal mitigation actions that are reasonably certain to occur.

While granting summary judgment to the plaintiffs, the court agreed with NMFS and the State of Oregon that a remand is appropriate to give NMFS the opportunity to consult with interested parties to ensure only those range-wide, off-site federal mitigation actions which have undergone section 7 consultation and rangewide, off-site, non-federal mitigation actions that are reasonably certain to occur are considered in the determination of whether twelve salmon ESUs will be jeopardized by continued FCRPS operations. The court will determine the next steps, including whether the 2000 BiOp will remain in force during the remand period, which is in hearing on May 16, 2003. NMFS and the action agencies have not yet determined whether or not to appeal the court’s decision.

Potential Implications

The 2000 BiOp is the continuation of a major overhaul of the operation of the FCRPS, and the court’s decision will have an impact on the development of other ongoing Federal and regional processes, including the Basinwide Salmon Recovery Strategy. The court’s decision will result in a new round of consultation by NMFS with interested parties and other agencies for the required ESA consultation. Most of the plaintiffs in the lawsuit claim the breaching of four federal dams on the lower Snake River is a needed component of river management in order to recover listed chinook, sockeye and steelhead in the Columbia's biggest tributary. In creating the 2000 BiOp, NMFS stated that the dam removal option would be reconsidered as soon as 2005 if its aggressive non-breach strategy appeared to be failing. However, environmental groups are pushing for the dam removal option to be considered in the current river management plan, and they feel the decision in National Wildlife Federation v. National Marine Fisheries Service requires the federal government to address the removal of the four lower Snake River dams. Environmental groups view this decision as an opportunity to rewrite the river management plan so as to address their concerns. Whether NMFS is required to rewrite the 2000 BiOp, or simply follow up on the ESA required agency-to-agency consultation requirements and address the “certainty” of non-federal mitigation actions, will be known after the parties meet on May 16th.