The Federal Energy Regulatory Commission (FERC), under the authority of the Federal Power Act,86 licenses non-federal dams on navigable waterways.87 In 1985, Congress passed amendments to the Federal Power Act that mandated greater consideration of fish and wildlife in licensing proceedings.88 By these amendments, FERC must give equal consideration in licensing proceedings to “the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality.”89 FERC is further required to make its determination upon whether the project will be best adapted to a comprehensive plan for improving a waterway, for the improvement of water-power development, “for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, …”90 FERC is required to consider the recommendations of Federal and State agencies “and the recommendations (including fish and wildlife recommendations) of Indian tribes affected by the project.”91 In addition, FERC is required to adopt conditions for fish and wildlife recommended by state and federal agencies received pursuant to the Fish and Wildlife Coordination Act,92 and to prepare findings as to why the recommendations were rejected based upon inconsistency with applicable law.93
Five mainstem dams, owned and operated by public utilities traverse the mid-Columbia in the state of Washington.94 On the Snake River, the Idaho Power Company owns the Hells Canyon Project which consists of three dams: the Brownlee, Oxbow and Hells Canyon developments.95 The licenses for these projects include “reopener” clauses permitting FERC to require “reasonable modifications” of project structures and operations in the interest of fish and wildlife resources. Article 39 of the Wanapum and Priest Rapids license, for instance, provides that:
39. The licensee shall … comply with such reasonable modifications in project structures and operations in the interest of fish life in connection with the project as may be prescribed hereafter by the Commission upon recommendations of the Secretary of the Interior, the Washington State Departments of Fisheries and Game and the licensee.96
In response to a fish kill at Priest Rapids, Mid-Columbia FERC license modification proceedings were initiated between 1976 and 1978 in response to petitions invoking article 39 filed by the Yakama and Colville Indian tribes, the Oregon and Washington fish and wildlife departments, and the USFWS.97 On March 7, 1979, FERC consolidated the proceedings and ordered hearings to determine what long-term studies and interim measures were necessary for protection of migrating salmon.98 Over ten years, the parties developed a series of five interim agreements prior to agreements establishing long-term modifications.99 The Wells Dam Settlement Agreement (Wells Agreement) reflects a positive, long-term outcome of those proceedings.100
The substance of the Wells Agreement addresses the elements of adult and juvenile fish passage including flows, spills, bypass, and operational requirements.101 The Agreement also includes a detailed hatchery-based compensation program composed of adult collection sites; a central hatchery facility for incubation, early rearing, and adult holding; and acclimation facilities in the tributaries above Wells Dam for final rearing and release.102 This production program includes funding for studies relating to the potential for establishing new sockeye populations in the Okanogan and Similkameen systems in a manner consistent with the NPPC’s FWP.103
During the next twenty years, each of the PUD dams on the mid-Columbia, except Rock Island, and the Idaho Power Company projects on the Snake will be subject to relicensing.104 In light of the mid-Columbia proceedings and the 1985 amendments to the Federal Power Act, non-federal dam licensing has clearly evolved into an authoritative process with dispute resolution and clearly defined responsibilities for the protection of anadromous fish. It remains to be seen whether the FERC processes will be integrated with the other major institutional structures to facilitate recovery.
The Endangered Species Act
With regard to Snake River chinook and sockeye, it would seem that the purposes of the ESA and the tribes’ treaties could be read consistently with one another and with the laws of nature. But application of the ESA to treaty fisheries demonstrates otherwise.
The purpose of the Endangered Species Act is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation105 of such species, and to take such steps as may be appropriate to achieve the purposes of various international treaties and conventions.
The ESA is a process for listing, protection, and recovery of certain species, subspecies, and distinct populations. In 1991, NMFS listed Snake River sockeye and chinook under the ESA. Unfortunately, administration of the ESA by the federal government has impeded the protection and rebuilding of treaty fish resources by shifting regional priorities away from basin-wide rebuilding and restoration, by limiting necessary recovery actions and by failing to proscribe certain harmful activities. Federal implementation under the leadership of NMFS has been inconsistent with the major structures that were developed by the region during the last twenty years to guide Columbia Basin anadromous fish management.
NMFS decision to list Snake River salmon populations hinges on its application of the ESA’s provisions defining “species,” which allows the listing of species, subspecies, and distinct population segments.106 Snake River chinook and sockeye are neither species nor subspecies, they are, according to the listing, “distinct population segments” (DPS). Under the NMFS Interim Policy, NMFS will find a DPS when a population’s characteristics meet the standards of an “Evolutionarily Significant Unit.” In order to meet these standards, the population must exhibit reproductive isolation and “represent an important component in the evolutionary legacy of the species.”107
The NMFS Interim Policy on Artificial Propagation of Pacific Salmon requires that once a population is found to be an ESU, its adaptive genetic differences are to be protected from interbreeding with other non-ESU populations as defined by NMFS.108 But this policy is at odds with nature: a proportion of a salmon population will home to their natal streams while the remainder will stray to other streams where they will spawn with the local population and produce hybrids that can add to the ability of the population to cope with changed conditions in the habitat.109
In a healthy metapopulation, like upriver chinook or sockeye in 1855, straying and introgression occur frequently. In a damaged/declining population, isolated from other populations, the beneficial effect of straying is diminished because the population gene flow is limited by the respective sizes of the populations and the fragmentation of their habitat. By limiting straying to arbitrary limits by either limiting populations that may stray or destroying adult fish that may stray into the spawning areas of a listed population, NMFS is limiting normal biological activities that may strengthen listed populations.
The NMFS ESU policy, as applied to fragmented, isolated populations would separate those same populations from basin populations in adjoining subbasins and hatcheries that could render assistance.110 Thus, the ESU policy is at odds with the plans and programs of CRFMP, FERC, and FWP, which rely upon specific watershed programs that utilize habitat protection and artificial propagation techniques for restoration.111
The ESA proscribes activities that could kill or harm listed species or destroy those species’ habitat.112 Harm is very broadly defined. However, the ESA provides an exception to this prohibition against “takings” if such takings occur incidentally to otherwise lawful activities.113 Section 7 provides a means for federal parties to obtain an incidental taking authorization. Section 10 provides a means for non-federal parties to obtain an incidental take permit.
Under section 7, federal action agencies are required to prepare biological assessments (BA’s) for actions that they fund, authorize, or carry out that are likely to affect a listed species or its critical habitat. If the action is likely to adversely affect the species or its habitat, then NMFS initiates a consultation and prepares a biological opinion (BO) stating whether or not NMFS believes the action is likely to jeopardize the continued existence of the species or result in destruction or adverse modification of critical habitat of the species.114 Under Section 10, non-federal parties may obtain an incidental take permit under a more complex process involving the preparation of a habitat conservation plan (HCP).115
In the Columbia Basin, section 7 consultations have taken place for harvest, hatchery activities, hydroelectric dam operation, and land management, among other activities. In each case, NMFS has preserved the status quo rather than heeding scientific information indicating jeopardy to the listed species and the need for operational changes to protect salmon.
Concerning harvest, consultation has generally taken place within the context of U.S. v. Oregon processes including the Technical Advisory Committee, the Policy Committee and dispute resolution by the court. Repeatedly, the tribes have taken issue with NMFS draft BOs that set arbitrary harvest restrictions and fail to integrate the use of propagation and remedies for other sources of mortality. These issues were brought before the court and orders were approved by the court relating to some of these issues.116
With regard to hatchery activities, the NMFS BOs have generally permitted existing hatchery operations practices and releases for Mitchell Act facilities, a program administered by NMFS through contracts with the states and the USFWS. With regard to the LSRCP, NMFS has generally supported this USFWS program and its facilities, a program that was originally developed by NMFS as principle writer.
However, NMFS, based on its ESU policy, has vigorously opposed tribal propagation activities intended to rebuild of naturally-spawning runs. In response, the tribes brought certain production issues to CRFMP dispute resolution including the use of Rapid River spring chinook stock for rebuilding in the adjoining Grande Ronde basin; the use of Imnaha stock for rebuilding the listed Imnaha spring chinook population, and the use of Lyons Ferry Hatchery Snake River fall chinook stock for rebuilding naturally spawning Snake River fall chinook populations. Though each issue was resolved in favor of tribal positions, the time and expense involved in dispute resolution as well as the potential for future disputes argue for policy modifications to support rebuilding and restoration.
With regard to hydroelectric projects, the NMFS hydrosystem BO was challenged by the Idaho Department of Fish and Game, the initial plaintiff, followed by the State of Oregon as a plaintiff-intervenor and the tribes as amicus curiae.117 The defendants are NMFS, the U.S. Army Corps of Engineers, and the Bureau of Reclamation. On March 28, 1994, Judge Malcolm Marsh held that the NMFS BO violated ESA and he ordered NMFS to remedy deficiencies in the 1994-1998 hydrosystem BO.118 After a year of negotiations, NMFS issued its 1995 BO119 and submitted a “Report of Compliance” with Judge Marsh’s 1994 order.120 The tribes objected to the BO and the “Report” based upon the failure of NMFS to articulate a clear jeopardy standard and its failure to give due weight to the recommendations or survival modelling of the states and tribes.
Also with regard to hydroelectric impacts on salmon, NMFS, in its BO, has chosen to devote substantial resources to research at its laboratories in Seattle, Washington. In FY 1996, NMFS estimates a need for $23 million for research that is not subject to consultation, peer-review, or co-management.
NMFS efforts to consult with the USDA Forest Service have been hampered by the absence of data and the existence of conflicting policies. The Forest Service has generally failed to assess the quality of existing habitat conditions in much of the Salmon River. Furthermore, it has developed plans for all Snake River Basin national forests that sanction additional degradation of fish habitat. Land resource management plans for national forests such as the Sawtooth, Salmon, and Challis made no mention of the rebuilding goals embodied in the Pacific Salmon Treaty or the Columbia Basin FWP. The Forest Service has made no attempt to identify chinook production goals in the land resource managment plans (LRMP) that are consistent with rebuilding programs nor did it discuss or disclose how its habitat management will affect harvest regimes. As addressed in its forest plans, it is impossible to determine the extent of consistency or inconsistency of these plans with rebuilding goals.121
In light of the consideration given to salmon in the LRMP’s, the Forest Service did not consult with NMFS concerning the effect that the plans would have upon listed salmon populations. Environmental groups filed suit in the federal district court for Oregon against the Forest Service to require consultation on Oregon’s Snake River national forests and won.122 Both the Forest Service and the environmental organizations appealed to the Ninth Circuit Court of Appeals which affirmed the decision and, in August, 1994, the Forest Service initiated consultation with NMFS on the Snake River plans.
By December, 1994, NMFS had prepared a draft BO finding jeopardy but providing a “reasonable and prudent alternative” that included, among other things: 1) protection of roadless areas; 2) reallocation of riparian areas to salmon protection; 3) strict limitations on sediment increases in salmon habitat; 4) strict limitations on grazing and mining in salmon habitat; and, 5) direction to the Forest Service to reallocate resources in the forest plans consistent with plans for salmon watershed restoration. However, in March, 1995, NMFS backed away from the jeopardy opinion and issued, instead, a “conditional jeopardy” opinion that exempted LRMP’s and rephrased the December “reasonable and prudent alternative” as a series of vague guidelines, although the final opinion was based upon the same biological information as the December draft opinion.123
In the case of Snake River salmon, the ESA requires that the Secretary of Commerce “develop and implement” a recovery plan for the conservation and survival of the listed populations.124 NMFS issued its Proposed Recovery Plan for Snake River Salmon (PRP) in March 1995.125
In general, the draft Recovery Plan overemphasizes minor sources of salmon mortality–treaty and non-treaty harvest–while failing to require significant reductions in major sources of mortality including the mainstem hydrosystem of dams and reservoirs and poor land and water management practices (logging, grazing, mining, and overappropriation) within essential tributary habitat.
The Plan gives priority to actions that preserve Snake River salmon populations and it focuses heavily on creation of new committees and processes linked together into a proposed institutional structure.126 In deference to the recommendations of the NMFS-appointed Snake River Scientific Recovery Team (SRSRT), NMFS will make final decisions where a consensus is not produced by its proposed institutional structure.127 The institutional structure consists of a Salmon Recovery Implementation Team (SRIT) appointed, convened and chaired by NMFS;128 a Scientific Advisory Panel (SAP) appointed, convened, and managed by NMFS;129 and a series of committees established, appointed, and managed by NMFS.130 In order to resolve disputes, NMFS proposes to adopt a formal dispute resolution process, parallel to that of U.S. v. Oregon, “to resolve scientific and technical issues associated with Snake River salmon recovery”131 NMFS also proposes “to map out a regional process for collecting, managing, and disseminating data.”132
With regard to proposed committees and subcommittees, NMFS proposes to evaluate the memberships of existing committees to ensure “the necessary breadth of expertise,” and may use them rather than creating a duplicate or competing process.133 However NMFS intends to convene certain committees immediately “to facilitate the immediate implementation of critical conservation measures.134 These include a Technical Management Team (TMT), a Passage Advisory Committee (PAC), a Habitat Committee (HC), and a Fish Production Committee (FPC) composed of a Natural Production Subcommittee and a Hatchery Management Subcommittee.135
The administration of the Endangered Species Act by the National Marine Fisheries Service has diverted resources from basin recovery envisioned by the CRFMP, the FWP, the Pacific Salmon Treaty and FERC orders. The draft ESA Recovery Plan institutional structure is inconsistent with the processes embodied by those plans and will divert future resources to another layer of committees and procedures.
86. Federal Power Act, 16 U.S.C. §§ 791a-828c (1985) & Supp. 1995).
87. Id. at 797(e).
88. Pub. L. No. 99-495 §3(c); 100 Stat. 1252 (1986).
90. 16 U.S.C. §803(a) (1985 & Supp. 1995).
91. Id. at para. (2)(B).
92. supra. note 82.
93. 6 U.S.C. §803(j) (1985 & Supp. 1995); Pub. L. No. 99-495 §3(c); 100 Stat. 1252 (1986). Though tribes are not entities named in the Fish and Wildlife Coordination Act, report language for the 1986 amendments, the Electric Conusmers Protection Act of 1986 indicates that the section was not intended to change FERC’s existing obligations to consider tribal fish and wildlife recommendations and accord them due weight. H.Rep. No. 99-934, 99th Cong., 2d Sess. 23-24.
94. 1) Wells Dam, Project No. 2149, operated by Douglas PUD and licensed by FERC in 1962; 2) Rocky Reach Dam, project No. 2145, operated by Chelan PUD and licensed by FERC in 1957; 3) Rocky Island Dam, Project No. 943, operated by Chelan PUD and licensed by FERC originally in 1930 but amended in 1974 and relicensed in 1987; and 4) Wanapum and Priest Rapids dams, Project No. 2114 operated by Grant County PUD and licensed by FERC in 1955.
95. FERC Project No. 1971.
96. Public Utility District No. 2 of Grant County, Washington, 15 FPC 1005, at 1006 (1956).
97. Washington Department of Fish and Game, Complaint and Protest Re: Minimum Flows, Mid-Columbia Proceeding (FERC 1976). The original cause for concern for the fishery parties was a fish kill resting from a test at Priest Rapids that held flows at a minimum level for approximately 30 hours killing approximately one million juvenile fall chinook that were leaving the spawning gravel.
98. Id. 6 FERC ¶ 61,210 at 61,537 (1979).
99. Public Utility District No. 2 of Grant County, Washington, Docket No. E-09569-003 (Grant County Phase) at 4-5. See also FERC’s Mid-Columbia Proceeding: Ten Years and Still Counting, 16 Envtl. L. 555-577 (1986) for an account of the Mid-Columbia proceedings.
100. Settlement Agreement, Public Utility District No. 1 of Douglas County, Washington, Docket No. E-9569 (FERC Oct. 1, 1990). The measures of the Wells Agreement, when carried out according to its terms, are considered as fulfilling the PUD’s obligation to protect, mitigate and compensate for anadromous fish resources “at least until March 1, 2004” and “are expected to contribute to the Northwest Power Planning Council’s goals of rebuilding…and providing harvest opportunities. Id. at 2. Though the agreement is intended to apply to the current license and annual licenses issued after the current license expires in 2012, the agreement includes a “reopened” effective after March 1, 2004, Id. and a dispute resolution mechanism permitting review by a decision maker (the presiding judge in the proceedings or certain other FERC officials) if the parties cannot reach a consensus agreement concerning compliance with the agreement Id. at 6.
101. Id. at 8-18.
102. Id. at 18-19.
103. Id. at 24.
104. In addition to license modification, the standards for relicensing also were addressed during the mid-Columbia proceedings. When Chelan PUD sought relicensing of the Rock Island Dam in 1977, FERC found that the existing discussions in the consolidated proceedings satisfied Chelan’s fishery obligations and issued a new license in 1981 without an EIS and with deferral of fishery conditions to the consolidated proceedings. FERC Order Issuing New License, Public Utility District No. 1 of Chelan County, Washington, Docket No. E-9569 (FERC May 13, 1981). The Yakama Indian Nation as well as the National Marine Fisheries Service, the Washington Department of Fisheries and Wildlife and the National Wildlife Federation filed suit in the Ninth Circuit Court of Appeals, Yakima, 746 F.2d 466 (9th Cir. 1984), cert. den., 105 S. Ct. 2858 (1985). The court’s holding emphasized that the Federal Power Act requires that FERC inquire into fishery issues in a relicensing to the same extent as if it were assessing the initial licensing of a new project and before the issuance of a license. Id. at 470. Further, the court found that FERC had improperly failed to provide a NEPA statement given the similarity of relicensing to the issuance of a new license. Id. at 476-477.
105. ESA Section 2(3), 16 U.S.C. §1532(3) provides that CONSERVE, CONSERVING, and CONSERVATION mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which measure [of ESA] are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation [hatcheries], live trapping, and transplantation…”
106. Id. at § 1532 (16).
107. 56 Fed. Reg. at 58,619 (1991).
108. 58 Fed. Reg. at 15,574 (1993).
109. Robert Vrijenhoek, Population Genetics and Conservation, in Conservation for the Twenty-First Century 89-98 (D. Western & M. Pearl eds., 1989).
110. See Daniel J. Rohlf, There’s Something Going On Here: A Critique of the National Marine Fisheries Service’s Definition of Species under the Endangered Species Act. 24 Envtl. L. 618 (1994).
111. However, the courts have limited authority to review agency policies interpreting the statutes that an agency is authorized to enforce. When an agency is making policy “at the frontiers of science, a reviewing court must generally be at is most deferential.” Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). Thus, the interim policy, though arguably inappropriate to accomplish the recovery purposes of ESA, is cloaked in science and utilized by NMFS as an authoritative interpretation of the Endangered Species Act.
112. 16 U.S.C. 1538.
113. 16 U.S.C. 1536 & 1539.
114. If, in its BO, NMFS finds “no jeopardy,” then the BO will include an incidental take statement if an incidental taking is proposed and it may include alternatives to minimize impacts identified by NMFS. If NMFS finds “jeopardy,” then it must identify reasonable and prudent alternatives or state that there are none. If the action agency wishes to proceed without modifying its proposal, then it must seek an exemption from the Endangered Species Committee (“the God Squad”).
115. 16 U.S.C. 1539(a)(1)(B). The HCP must specify the impacts to the species or its critical habitat, detail steps to minimize and mitigate impacts and their funding sources, enumerate alternatives to the proposed action and the reason they were not chosen, and include measures deemed necessary by the Secretary. If, after public comment, the Secretary can make findings supporting the conclusions of the HCP, an incidental take petit will issue. NMFS has approved an HCP submitted by the Idaho Department of Fish and Game for the Idaho sports fishing program. Idaho Department of Fish and Game, Application for Individual Incidental Take Permit Pursuant to the ESA for the IDFG Sport Fishing Program (March 1993).
116. U.S. v. Oregon, Civ. 68-513 (Sept 9, 1994 and Aug. 10, 1995).
117. Idaho Department of Fish and Game v. National Marine Fisheries Service, Civ. No. 93-1603-MA (D. Or.) [hereinafter IDFG v. NMFS].
118. IDFG v. NMFS. 850 F. Supp. 886 (D. Or. 1994).
119. NMFS, Endangered Species Act Section 7 Biological Opinion on the Reinitiation of Consultation on 1994-1998 Operation of the Federal Columbia River Power System and Juvenile Transportation Program (March 22, 1995).
120. NMFS, Report of Compliance with Order of March 28, 1994 and Judgement (March 22, 1995).
121. See generally, CRITFC’s Administrative Appeals of the Plans and Final EISs for the Salmon, Sawtooth, Challis, Boise, Payette, Clearwater, Nez Perce, wallows-Whiteman, and Umatilla national forests.
122. Pacific Rivers Council v. Thomas (Oct. 6, 1993).
123. Joan Laatz, Documents fault salmon decision, The Oregonian, April 21, 1995, at 1. On February 3, 1995, the United States petitioned the Supreme Court to review the ninth circuit decision arguing that a consultation on the LRMP’s was not necessary to protect the listed species because the plans themselves do not affect salmon; site specific activities affect salmon. The Supreme Court denied review. Pacific Rivers Council v. Thomas, 30 F. 3d. 1050 (9th Cir. 1994) (cert. den.)_U.S._(1995).
124. 16 U.S.C. 1533(f).
125. NMFS Proposed Recovery Plan for Snake River Salmon (March 1995).
126. Id. at I-4.
127. Id. at III-2.
128. Id. at III-5.
129. Id. at III-7.
130. Id. at III-8.
131. Id. at III-13.
132. Id. at III-16.
133. Id. at III-8.
134. Id. at III-10.
135. The TMT is established to advise operating agencies on dam and reservoir operations, the distribution of flow augmentation, and transportation and spill. The Committee will consist of representatives from COE, BPA, BOR, FWA, and NMFS.
The PAC, consisting of experts appointed by NMFS, will provide technical recommendations and findings regarding passage improvements to the TMT.
The HC, consisting of experts appointed by NMFS, will be responsible for developing and coordinating assessment and inventory methods and for coordinating, implementing and motoring research activities.
The FPC, consisting of experts appointed by NMFS, “will prove an operational link between the Snake River recovery program, the U.S. v. Oregon PAC and the NPPC FWP.” The Natural Production Subcommittee will have particular concern for ensuring that broodstock and supplementation program contribute “positively” to the recovery of self-sustaining natural stocks. The Hatchery Management Subcommittee is intended to recommend development of a “Columbia Basin-side integrated hatchery plan, consistent with the overall management objectives of the Recovery Plan,” and is to consist of experts appointed by NMFS with management experience from federal, state and tribal agencies and academia.
136. Given the proposed role of NMFS in recovery, it is appropriate to ask whether the agency and its predecessor, the Bureau of Commercial Fisheries, has played a constructive role, historically, in the recovery of naturally spawning upriver stocks. In reviewing its role as regulator of ocean salmon fisheries, its authorship of the Lower Snake River Compensation Play, and its administration of the Mitchell Act, NMFS has frequently exacerbated stock status. In addition, the work of the NMFS Seattle-based research program, with its focus on captive brood stock technology and its massive research contracts with the Corps of Engineers has compromised itself as an honest broker on production and hydro operations issues.