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Judge Redden outlines tentative position on 2008 biop in dispute over Columbia and Snake River dam operations, and impacts on salmonid species

By Keith Rizzardi

It's not a court opinion - yet - but Judge Redden made his position clear in a May 18, 2009 letter to the parties in National Wildlife Federation v. NMFS, CV 01-640 RE, the long-running litigation over the Federal Columbia River Power System and salmonid species.  While the 2008 biological opinion relied on a conclusion that the new biological opinion contained substantial improvements, and that species were trending toward recovery, Judge Redden disagreed: "Even if 'trending toward recovery' is a permissible interpretation of the jeopardy regulation, the conclusion that all 13 species are, in fact, on a 'trend toward recovery' is arbitrary and capricious."  In fact, the Judge went on to explain that (1) the Feds improperly rely on speculative, uncertain, and unidentified "habitat improvement actions," (2) Fed scientists have concluded that many of the measures are unsupported by scientific literature; (3) the Feds         assign implausible and arbitrary numerical survival improvements to the tributary habitat actions, (4) the BiOp does not identify any performance standards; (5) the BiOp does not, articulate a rational contingency plan; and (6) the Feds insufficiently explained their proposed operations.  See news coverage in LA Times blog, The Idaho Statesman, and The Seattle Times.  According to the Public News Service, local environmental groups were pleased.  But for a counterpoint to the optimism,  visit the editorial commentary in The Wenatchee World, criticizing the never ending salmon litigation, and stating that "The biggest salmon runs in 70 years came in this decade. Billions were spent to improve fish passage at dams, reaching the point where salmon survival equals or surpasses undammed rivers. For every dollar spent on electricity, 20 percent goes to salmon. Most salmon runs are gaining strength. They are not at the brink."


The fish ladder and Visitor Center at Bonneville Dam, photo from University of Washington

KEITHINKING: The opinion represents a setback for federal biologists, but solutions will never be easy to come in this struggle between carbon-friendly hydroelectric power and threatened and endangered salmonid species.  The letter also represents an unusual acknowledgement of politics, and the realities of a change in presidential administrations.  In a letter last week to Judge Redden, the Justice Department said top officials in the Obama administration want a delay of up to two months to "more fully understand all aspects" of the plan. See Capital Press.  Judge Redden's letter represents a prodding response.  "I applaud the new administration's efforts to understand, and become more fully engaged in the complex issues presented by this case."  In other words, rather than issuing an opinion, Judge Redden gave the Obama Administration an opportunity to take another look at the circumstances, and to reconsider the current course.

Full post as published by ESA Blawg on May 20, 2009 (boomark / email).