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Salmon, Dams, and Climate Change

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As the endless battle to manage salmon in the Columbia River basin marches on, the courts are now forcing the govenrment agencies that manage salmon to respond to new data on how climate change will affect the salmon, making a harder case that the government is actually protecting the salmon under the Endangered Species Act.

Joseph Bogaard, executive director of Save Our Wild Salmon, says, “This is a very significant — and significantly different — ruling.”

A week after the decision, a spokesman for the losing party, NOAA Fisheries (aka the National Marine Fisheries Service), declined to comment on it. He said federal agencies at the regional and national levels were still discussing what comes next. Thirteen Columbia River system salmon population have been listed for protection under the Endangered Species Act since 1991. So, the U.S. Army Corps of Engineers, the Bureau of Reclamation, and the Bonneville Power Administration, which operates and sell power from the dams, have had to consult on Columbia policies with NOAA Fisheries, which has had to issue biological opinions.

This time around, Judge Simon basically said that NOAA Fisheries had offered up the same old, same old — and that wasn’t good enough. The most recent BiOp, he said, “continues down the same well-worn and legally insufficient path taken during the last 20 years.” He also faulted it for relying on “a recovery standard that ignores the dangerously low abundance levels of many of the populations of the listed species.”

That flawed standard is “trending toward recovery,” something the Bush administration dreamed up for the 2008 BiOp and the Obama administration subsequently embraced. Basically, trending toward recovery means that if you have more fish this year than last, you’re not jeopardizing the long-term survival of the fish. It ignores the fact that a) it may take a long, long time to get the numbers up to a sustainable level; and b) at low numbers, a population runs a high risk of going extinct. “Without ‘trending toward recovery,’ ” says Earthjustice attorney Steve Mashuda, “the bar [for future BiOps] is automatically higher.”

The 2014 BiOp was chock-full of information on climate change, but it was devoid of any specific new action to deal with changing climate. Mashuda pointed out at the time that there were two threats — the river conditions that have reduced fish runs and climate change — “and they’re using the same bullet on both of them. That just doesn’t work.” Since then, climate and our knowledge of its effects have marched on. Mashuda now points to last summer when high water temperatures led to the death of nearly half the sockeye that started up the river, including virtually all of those bound for Idaho.

Simon’s opinion called attention to the BiOp’s lack of both new climate information and new proposals to deal with climate change. He said “the court is troubled” by NOAA Fisheries’ apparent effort to ensure that “the climate literature reviews . . . bolstered NOAA Fisheries’ contention that all new climate information is encompassed by NOAA Fisheries’ previous analysis.”

None of this really gives me hope that the government will effectively respond to the problem or that the unnecessary dams on the Snake River will be torn down to restore salmon habitat, but it’s good news nonetheless.

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