Are we back to Groundhog Day on the Snake River? It sure looks that way. The usual suspects are back in court, to resume a roughly three-decades-long saga of litigation over the federal Columbia River System (CRS) dams’ effect on threatened and endangered salmon.
Feds have been filing Biological Opinions (BiOps) for operation of the dam system since before Bill Clinton’s first term. Federal courts have kept shooting them down. Now, Earthjustice — which has been at this litigation since 1991 — notes that the casualty list includes six BiOps shot down by three different federal judges. This has been a bi-partisan record of failure. Or, if you prefer, a bi-partisan template for Donald Trump’s approach to the legal system: break the law, lose your case, get reamed out by a judge, then carry on with business as usual.
The conflict might have ended decades ago were it not for the four Lower Snake River dams. Can the Snake’s listed fish populations recover unless the dams are breached? The environmental and fishing groups, tribes, and states involved in the litigation don’t think so.
Other critical questions: Can the subsidized irrigation water, barge transportation, and kilowatts provided by the dams continue? Or can the people who benefit from those economic goods continue to benefit in some other way if the dams are breached? Barge interests, electric utility groups and irrigators don’t think so, and they defend the New-Deal-inspired subsidies of the status quo. Despite an abortive effort by the Biden administration to take a different path, so do the current feds.
The dams remain unbreached. The fish remain threatened and endangered. And here we are again.
Has anything changed? Well, prospects for Snake River fish are growing bleaker. The new filing says that the National Marine Fisheries Service (NMFS) “has candidly acknowledged that if CRS operations continue as planned and the effects of climate change unfold as predicted, many smaller populations of Snake River Chinook will likely be fully extirpated in the next two to three decades, and the larger populations will experience substantially reduced productivity and abundance that will threaten the genetic and demographic resilience for the [Snake River Chinook] as a whole.”
In the beginning, of course, there were no dams and lots of fish. Before canneries provided access to a world market, there were lots of fish. When Lewis and Clark reached the Columbia, salmon were running and Indians were drying them in racks along the shore. In the relatively unspoiled America of 1804, the number of fish seemed “incredible.”
Snake River salmon populations started joining the endangered species list in 1991, an event that drew much less attention than the battle over the Northern Spotted Owl and the region’s last unprotected old-growth forests on federal land, which was making headlines at the same time. Snake River sockeye led the way, followed by Snake River fall Chinook (1992), spring/summer Chinook (1992), and steelhead (1997).
Because operation of the dam system would now affect threatened and endangered species, the federal government had to prepare a BiOp that detailed the effects on listed populations and what was being done to improve their odds of salmon survival and recovery. The government quickly produced one. Earthjustice, representing environmental and fishing groups, promptly sued and won. This pattern is now in its 35th year.
For a little while, it looked as if that pattern might finally be broken. The Biden administration and Earthjustice’s clients agreed to stay the current round of litigation so that they’d have time to work out a solution to the underlying problems, resulting in several such stays. Finally, the administration and the “six sovereigns” (the states of Washington and Oregon, the Confederated Tribes and Bands of the Yakama Nation, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Spring Reservation, and the Nez Perce Tribe) agreed to restore salmon habitat and study the cost of replacing the economic benefits currently provided by the dams.
To replace the dams’ power capacity, the settlement would include new green energy generation (including one project to be built soon) on tribal land. A long-term end to the conflict over Snake River dams looked to be right on the horizon. That turned out to be a mirage.
In June, President Donald Trump abruptly pulled out of the agreement. A White House fact sheet described the move as a blow against “radical environmentalism.” That agreement no longer exists. So Earthjustice’s clients asked a court to lift the stay, and now they’re back at it again.
Translating the initial deal into a comprehensive resolution had never been a sure thing. The packaging of the agreement and the coming together of governmental actors was novel, although the component parts weren’t that new. Habitat improvements have absorbed lots of money for decades. The Biden administration was already spending money on green energy projects. Funneling money to tribes isn’t new. Neither is looking at the economic services that the dams provide. The idea that the dams might ultimately be breached was, however, a milestone.
How much would breaching cost? Three years ago, Sen. Patty Murray and then-governor Jay Inslee estimated the total cost at $10.3 billion to $31.3 billion. This isn’t the only estimate, and any serious effort to breach the dams would involve a whole new calculation — which was part of the Biden administration’s deal with the six sovereigns.
What has been missing is a real commitment, which this agreement seemed to provide (and a pile of federal money). That commitment would ultimately have had to come from Congress. Federal dollars seem to be the not-so-secret sauce that makes these things work — as happened with the wildly successful campaign to take out the Olympic Peninsula’s two old Elwha River dams and restore the river’s salmon runs, when the federal government basically bought all the vested interests off.
That’s what would have to happen on the Snake. There is nothing new about subsidies in the Columbia Basin. Even if the dams remain or the mitigation dollars would materialize, things will have to change. In many ways they already have changed. It’s still federal dollars, but the Tri-Cities area’s cash cow is now nuclear waste cleanup. Cheap kilowatts from the big dams no longer go to the aluminum industry, which is now merely an historic memory. Now, a lot seem earmarked for the data centers.
Actually, The New York Times reports, data centers are upsetting people all over the world, but Northwesterners haven’t been making much noise. Locally, shrinking snowmelt in the Cascades means less summer water for agriculture — even as annual crops have been replaced by more-lucrative grape vines and fruit trees — and for population centers.
In the meantime, everybody’s back in court. To help fish in the short term, the plaintiffs ask the court to require more spill — that is, letting more water go over the dams — at crucial times for the fish, and requiring reservoirs behind the dams to be kept at minimum levels.
In the long term, the litigants think that this current BiOp, too, should be canned. Earthjustice points out that the BiOp “fails to analyze whether the Proposed Action will avoid jeopardy in a future that includes climate change. The BiOp candidly reports that the Proposed Action combined with climate change will lead to, at least, the severe depletion and, at worst, the complete extirpation of every population of listed salmon it analyzes. But …[it] relies on an analysis that excludes climate change to make its no-jeopardy conclusion.”
This points to a broader problem: The BiOp “fails to provide a rational explanation for its ultimate no-jeopardy conclusion because the logic (if any) underlying that conclusion is impossible to trace. The BiOp simply recites information — including information showing profound harms to listed salmon — and declares ‘no jeopardy.’”
It’s hard to pretend the current system is working, and judges keep pointing out that it’s not. When U.S. District Judge Michael Simon, who is still in charge of the case, rejected the 2014 BiOp, he observed: “For more than 20 years . . . the federal agencies have ignored these admonishments and have continued to focus essentially on the same approach to saving the listed species — hydro-mitigation efforts that minimize the effect on hydropower generation operations with a predominant focus on habitat restoration. These efforts have already cost billions of dollars, yet they are failing. Many populations of the listed species continue to be in a perilous state. The 2014 BiOp continues down the same well-worn and legally insufficient path taken during the last 20 years.”
Now that we’ve passed 30 years, what are the odds that this BiOp will fare any better than its predecessors? Slim to none, though of course if the case gets appealed to the current “Supine Court,” all bets are off. Meanshile, the deal that Trump scrapped holds out a bit of hope, forlorn as that may be.
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I’ve been curious about “habitat restoration”, which I take it to mean (at least in Lethe part) fish-ladders. Correct? And I’m impressed that a Federal Judge would conclude that it’s not working.
Dan, can you please point us to a fair-handed fact-based explanation of WHY “habitat restoration” ISN’T working? And impliedly, why it CANNOT work?
I have imagined habitat restoration (and fish ladders as an example) as part of a more general rewilding, which is a noble effort.
What’s the difficulty (or even impossibility) of mimicking nature to make great fish ladders?
Snake River dams will never be breached or “spilled” in the way Earth Justice and the Tribes want. The “sockeye” – Red Fish Lake – were poisoned by Idaho Fish and Game.
Either the BiOps get “accepted” by the Courts or call in the God Squad.
To me, the key is to make everyone whole who is involved in this complex situation.
I think one answer might be to have the governors of Idaho, Oregon and Washington bring together all the impacted parties at some sort of retreat to try to hammer out compromises and strive for a win-win situation by all parties
The sleeping lady retreat center near Leavenworth would be an ideal location to consider.
One of the thoughts that I’ve had to address the concerns about the barge operators and the wheat growers in eastern Washington is that part of the mitigation plan in removing the lower snake dams would be to rebuild the Palouse railroad system. My thought is that this rebuilt system could be operated as a cooperative among all the grain growers that currently truck their harvest to barge loading facilities along the snake. Instead, a rebuilt railroad would serve many local communities throughout the Palouse and would be much shorter distances for many farmers to transport their commodities to market.
A small separate reservoir could also be built to address local irrigation concerns. Finally regarding Energy, various sustainable energy projects, including wind, solar and nuclear, could be built in the region to replace the power lost from hydroelectric generation from the four dams.
With salmon species restored to the lower snake river, it’s my understanding that about 90% of the salmon get past the four lower Columbia dams; the Bonneville, the Dalles, the Joh Day and the McNary. With salmon restored to the snake river, they would have full access to the south fork of the Clearwater River, the grand Rhonde, the Lostine and the Wallowa and their namesake, the salmon River, the river of no return. That would provide incredible spawning habitat to allow the species to recover. Just look at the massive geography involved.
If the grain growers are made whoke, replacement power is provided, irrigators are made whole The impact on local communities would be much reduced, tribes would be very supportive of habitat and salmon restoration, both culturally and economically, and the Pacific Northwest would take a major step in saving a signature species in the cause of conservation, culture, the regional economy and our way of life.
The Lower Snake River Dams provide three key benefits–electricity, irrigation, barge transportation. By far the most difficult to mitigate is barge transportation. Not because it is technically difficult but because it is politically difficult.
Prior to the final dam–Lower Granite–being constructed in 1975, farmers used rail transportation to ship grain down alongside the Columbia River to the ports of Portland, Vancouver, and Kalama. That infrastructure is still available, albeit some of it has been submerged behind the dams and all of it needs upgrades.
Irrigation needs can be addressed through moving pipelines up river. Electricity can be replaced through incorporating dam removal into the region’s Integrated Power Plans. Utilities are really good at building new power plants when there are long term purchasing contracts in place and private finance has confidence. Solar, wind, battery storage and even small nuclear reactors are game changers that make it less expensive every year to replace the electricity of the Lower Snake River dams. The region’s existing hydropower and natural gas peaker plants are available to address intermittency, which they already currently do.
There are existing short line railroads on both sides of the Columbia that can be utilized to replace the barge transportation. On the Washington side, critical right of way is owned the state of Washington already and should be upgraded to allow access to northern mainline rail through Rosalia to BNSF line, which would provide competition and resiliency to the current route that only ties into Union Pacific line along the Columbia.
Here is where the political challenges lie. Farmers need to have assurance that transportation is inexpensive and available. Margins are always tight when it comes to commodities and farmers cannot take the risk that rail transportation will be more expensive or less flexible that existing barge traffic. Grain is sold on the futures market which means grain in silos up river need to be down at the dock when the ships arrive. It is a complex choreography that we once knew how to do but has become more difficult as train lengths have stretched to 110 cars and mainline freight rail have focused on longer distances.
So if one wants to remove the Lower Snake River Dams, all the infrastructure to ship grain needs to be in place when the first one comes down. There is no barge traffic at that point.
Farmers understand conservation and stewardship, just like the Tribes. Farmers also understand passing on a way of life to the next generation. But we can’t place all the risk on the backs of farmers. They need rock-solid assurances that governments are committed to provide equivalent cost and service as what they have today with barge traffic. Solve that political problem and the rest of the pieces will just fall into place.