The Bush administration’s new salmon plan offers a whole new spin on the Endangered Species Act

PORTLAND, OREGON — The Bush administration has delivered on another campaign promise to its industry supporters. In 2000, Bush promised farmers and power companies that he would not allow dams to come down in the Pacific Northwest in order to save endangered salmon. Now, in a bold rereading of the Endangered Species Act, the administration has tried to cement in place four dams on the lower Snake River. The decision could mean the end of federal responsibility for recovering 13 populations of endangered salmon in Oregon, Washington and Idaho.
The news comes in a draft biological opinion for the Columbia River Basin, a 10-year blueprint for balancing hydropower operations with the needs of endangered salmon. In it, NOAA Fisheries, the federal agency in charge of managing salmon, claims the Endangered Species Act authorizes the agency to consider only how dams should be operated, not whether they should exist. Noting that only Congress has the ability to demolish dams, the plan treats dams as natural parts of the landscape — like snowpack — that can’t be altered.

Traditionally, government agencies have interpreted the Endangered Species Act to mean that they must allow for the recovery of threatened and endangered species. Now, NOAA Fisheries says all it needs to do is keep salmon from going extinct.

"We are doing the right thing by the law and by the fish," says Brian Gorman, spokesman for NOAA Fisheries. "The Endangered Species Act does not mandate recovery, it mandates a recovery plan. That’s different from recovery. "

Written with direct input from the White House, the new salmon blueprint is more about politics than science, says a NOAA Fisheries official who agreed to speak on condition of anonymity. A major departure from previous agency biological opinions, the new plan could set a wide precedent if it stands up in court, says Nicole Cordan, policy and legal director for Save Our Wild Salmon: "This won’t stop at just salmon; if they win, it would have huge implications for all endangered species," she says.

Ironically, this new biological opinion was supposed to end years of legal wrangling. A 2000 NOAA Fisheries plan declared that, while decommissioning dams would be the surest way to recover endangered salmon, the dams could continue to operate without hurting salmon — if state, federal and tribal agencies followed through with 199 other habitat, hydro and hatchery improvements. Last year, in response to a lawsuit filed by environmentalists, tribes and fishermen, U.S. District Court Judge James Redden found that the plan was inadequate because it failed to offer any certainty that such measures could be implemented. The plan, said Redden, required unprecedented federal, state and tribal agencies cooperation; it lacked clear funding for state actions; and in one case, it asked the Bureau of Reclamation to undertake actions for which it had no authority.

Indeed, between 2001 and 2003, only 50 percent of the proposed measures were funded, and just 27 percent of them implemented, according to a report by the tribes and Save Our Wild Salmon.

The new blueprint lays out more specific measures, such as retrofitting dams to help salmon avoid lethal electrical turbines. But because the plan doesn’t guarantee salmon recovery, it may not pass legal muster, Judge Redden told a crowded courtroom at a Sept. 28 hearing in Portland. "I’m concerned about whether or not we’re headed for a train wreck in our future," he said.

Tribes, fishermen and environmentalists pledged to sue unless the final biological opinion, due for release on Nov. 30, is drastically different. "We expected to be disappointed, but we didn’t know they would go this far," says Charles Hudson of the Columbia River Inter-Tribal Fish Commission. "This administration has turned its back on salmon recovery."

Environmental attorneys say the law is on their side. Not only does the new plan contradict numerous legal documents and handbooks produced by the agency in the past 30 years, there is a legal precedent in the courts. The 1994 case Idaho Department of Fish and Game vs. NMFS found that dams aren’t immutable and that biological opinions must consider state and tribal perspectives. And this August, two federal courts found that simply maintaining endangered species populations is not enough.

With a strong legal case against the new plan, why would the administration push a plan like this? Because NOAA Fisheries’ legal advisors are former timber industry lawyers who have been trying to reinterpret the Endangered Species Act for years, says Dan Rohlf, a law professor at Lewis and Clark College.

"These arguments never worked when they were industry lawyers, but now they’re running the show," says Rohlf, who filed the appeal of the original biological opinion. "They certainly have the authority to make policy. But the question remains, is this legal?"