A federal appeals court Monday strongly rejected the Bush administration's novel 2004 plan for making Columbia Basin hydroelectric dams safe for salmon, saying it used "sleight of hand" and violated the Endangered Species Act.
The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco upheld U.S. District Judge James Redden's order requiring the dams to sacrifice power production to help juvenile salmon migrating to the ocean.
It also keeps open the possibility that Redden could order four dams on the lower Snake River in eastern Washington breached to restore salmon — a step he has said he would be willing to take if needed.
"Under this approach, a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest," Judge Sydney R. Thomas wrote of the Bush administration's approach to balancing dams against salmon. "This type of slow slide into oblivion is one of the very ills the ESA seeks to prevent."
The ruling was the latest of a series in recent weeks going against the Bush administration's environmental policies, including global warming, forest management, and protecting endangered species.
Michael Garrity of American Rivers, one of the salmon conservation groups that filed the original lawsuit, said the ruling made it clear that "small tweaks to the system" are not going to save salmon, from a legal or scientific standpoint.
Larger steps, such as breaching the four lower Snake River dams and taking more irrigation water from Idaho farmers, need to be seriously considered, he said.
NOAA Fisheries, the federal agency in charge of restoring salmon populations that have fallen to a fraction of historical levels, and the Bonneville Power Administration, which sells the power generated by the dams, did not immediately comment on the ruling.
NOAA Fisheries has been trying to come up with a valid plan for operating federal hydroelectric dams on the Columbia and Snake rivers since 1993. Each one, known as a biological opinion, has been found wanting by federal courts.
A total of 13 species of salmon and steelhead that pass over the dams are listed or threatened or endangered. Juveniles swimming downstream to the ocean are hit the hardest. Each dam kills a few percent of each overall run when tiny fish are ground up in turbines, disoriented by plunging over spillways, and eaten by predators in slow water, adding up to a major impact.
Redden has ordered the U.S. Army Corps of Engineers to spill more water over the dams, leaving less to go through turbines, as a way to help more fish survive.
NOAA Fisheries concluded in 2000 that it might be necessary to breach the four dams on the lower Snake River to save threatened and endangered salmon, but after President Bush took office in 2001, he promised the dams would stay.
In 2004, NOAA Fisheries came up with a new approach that argued because the dams were built before the Endangered Species Act became law, their existence was part of the environmental baseline, and not subject to removal to help salmon. The same went for basic operations, such as irrigation, flood control and power generation.
NOAA agency criticized
The appeals court completely rejected that approach, calling it, "little more than an analytical sleight of hand, manipulating the variables to achieve a 'no jeopardy' finding," Thomas wrote. "Statistically speaking, using the 2004 BiOp's analytical framework, the dead fish were really alive. The ESA requires a more realistic, common sense examination."
The appeals court found that no other federal agency had ever taken such a "cramped view" of its authority, adding that federal agencies have a duty to satisfy the requirements of the Endangered Species Act as a "first priority" over other laws.
The appeals court also found that NOAA Fisheries had been unreasonable to leave out any discussion of how the dams would affect the recovery of protected salmon, not just their survival.
The ruling added that improvements to the dams, such as devises to help salmon safely swim over dams, known as removable spillway weirs, are not enough to make up for lost habitat.