For the week of June 25 - July 1, 2003

Water users seek salmon recovery blueprint

Dam breaching still on politicians’ back burner

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By GREG STAHL
Express Staff Writer

Breaching four lower Snake River dams to help endangered and threatened Northwest salmon recovery continues to be a controversial, hotly debated issue.

Even after a federal judge ruled in May that government programs to protect threatened and endangered salmon runs in the Columbia River Basin do not meet the requirements of the Endangered Species Act, the Northwest’s top public officials say breaching should remain off the table.

"The governors (of Idaho, Montana, Oregon and Washington) clearly stated that breaching of the dams is divisive and must not be an option," said Michael Bogert, counsel to Idaho Gov. Dirk Kempthorne.

Bogert joined National Wildlife Federation attorney Jan Hasselman and U.S. Department of Justice attorney Fred Disheroon in a panel discussion on Monday, June 23, on the direction the government should take following the May ruling, which nullified the federal government’s salmon recovery plan, adopted in 2000.

The discussion was part of a two-day Idaho Water Users Association conference at the Sun Valley Resort.

The one point panelists appeared to agree on is that the decision to strike down the so-called 2000 biological opinion should not jeopardize ongoing efforts to recover salmon by working to improve habitat, hatchery and hydro system conditions throughout the Columbia River system.

"What needs to happen, at a very minimum, is we need to keep ahead with current efforts," Hasselman said. "We need to be doing more in the absence of a new, more credible plan."

While Disheroon used the majority of his speech to recap the history of the salmon recovery issue, he concluded that the four Northwest states should continue with recovery strategies put forth in the 2000 biological opinion in the absence of a new plan.

Bogert also stressed that the Kempthorne administration wishes to see solutions to the salmon conundrum come from the four Northwest states. The Bonneville Power Administration, which governs the hydro system in the Columbia River watershed, is a Northwest entity, he said, and "inside the (Washington) Beltway proposals will not be welcome."

In a 26-page opinion, U.S. District Judge James A. Redden struck down the so-called biological opinion on May 7 as violating federal law. Redden returned the matter to the National Marine Fisheries Service and told the service to develop a plan that complies with the Endangered Species Act.

Drafted in December 2000, the salmon recovery strategy focused on improving habitat and hatchery operations and limiting harvest without breaching the four dams on the lower Snake River as many environmentalists and biologists requested.

A coalition of 16 environmental and fishermen's groups sued in May 2001, claiming the biological opinion "capriciously and without any rational basis" concluded that the recovery strategies would not put the fish stocks in jeopardy of extinction.

Environmental groups view the May court decision as an opportunity to revisit the breaching issue.

"We have a real opportunity here and we want to be sure we get a plan adequate to protect the fish," said Todd True, an attorney for Earthjustice, one of the plaintiffs.

Bill Sedivy, of Idaho Rivers United, a member of the coalition, said the ruling could finally redirect the debate over salmon recovery to the real problem—four dams on the lower Snake River in eastern Washington.

"We thought all along that the strategy behind the plan was a bit like trying to treat cancer with aspirin," Sedivy said. "Fortunately, the judge saw it that way, too.

"With this ridiculous plan out of the way, we now have a real opportunity to do something meaningful for Idaho’s wild salmon and steelhead."

However, Hasselman said during the panel discussion that breaching might not be a realistic option, considering the U.S. political climate.

"The president has indicated that breaching is not an option, so that may have to wait until future administrations," he said.

In trying the case, True argued that the government has a duty to ensure its actions will not put endangered stocks in jeopardy as opposed to providing the likelihood that they will not.

"It cannot be based on chance, on the hope that good things will happen in the future," he said.

The Endangered Species Act, he said, is "an institutional caution. We don't take chances with species listed as endangered by extinction."

Disheroon, recapping the Justice Department’s stance on the lawsuit, said the most important point made in the 2000 biological opinion was that it is "certainly not possible to take enough measures in the federal hydro-system to avoid jeopardy (to the fish)."

"Judge Redden put his own interpretation on the federal regulations, a fairly literal interpretation," Disheroon said. "The Endangered Species Act never contemplated a federal hydro-system."

As a parting shot, Disheroon added that the position of the Justice Department is that the purpose for habitat mitigation required by the nullified 2000 biological opinion is not to mitigate for habitat flooded behind the slack of the Columbia system dams.

"It’s to mitigate for all of mankind’s activities," he said.

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