Avoiding dam breaching through offsite mitigation: NMFS's 2000 biological opinion on Columbia Basin hydroelectric operations.I. INTRODUCTION For the past two decades saving Columbia River salmon has been at the top of the Northwest's, if not the nation's, natural resource agenda. Beginning with the enactment of the Northwest Power Act in 1980, (1) and continuing with the promulgation of the Columbia Basin Fish and Wildlife Program in 1982, (2) the ratification of the Pacific Salmon Treaty in 1985, (3) and the Endangered Species Act (4) listings of the 1990s, (5) saving salmon became the focus of federal, state, and restoration efforts. Despite these efforts, wild salmon runs continue to decline. (6) The most controversial recent restoration effort was the promulgation by the National Marine Fisheries Service (NMFS) of a biological opinion (BiOp) in 2000 on five years of Columbia Basin hydroelectric operations and the release of an accompanying nonbinding salmon recovery plan by a federal interagency group known as the Federal Caucus. (7) The 2000 BiOp will govern Columbia Basin hydroelectric operations, the chief cause of Columbia Basin salmon mortalities, (8) during 2001 through 2005. An earlier BiOp on hydroelectric operation had been struck down in court because of its reliance on overly optimistic assumptions and its failure to consider the views of state and tribal biologists. (9) A revised BiOp survived judicial scrutiny, even though the reviewing court questioned NMFS's willingness to tolerate high risks of salmon extinction. (10) Preparation of the 2000 BiOp became especially controversial when a number of scientific studies indicated that the best means of restoring some of the most imperiled salmon, the Snake River runs, was breaching four federal dams on the lower Snake River. (11) Moreover, several economic studies suggested that breaching the four dams was economically affordable. (12) The 2000 BiOp on hydroelectric operations did not, however, endorse dam breaching. After an early draft of the BiOp suggested that NMFS would recommend breaching if specific performance standards were not achieved, (13) the final BiOp reversed course, maintaining the performance standards but not promising to recommend dam breaching if they were not met. (14) Since President George W. Bush campaigned specifically against dam breaching, (15) it is likely that whatever the BiOp said about dam breaching in the future may be academic during his presidency. Nevertheless, the BiOp's eschewing of the breaching option prompted lawsuits. (16) In order to avoid breaching the lower Snake dams, the 2000 BiOp not only adopted a series of performance standards for hydroelectric operations, it relied heavily on non-hydroelectric activities, such as improved hatchery operations and habitat protection and restoration, to conclude that the ensuing five years of the hydroelectric operations would not jeopardize the continued existence of listed salmon runs. (17) These measures, referred to by the BiOp as "offsite mitigation," (18) were promised in the accompanying nonbinding salmon recovery plan developed by a coalition of federal agencies. (19) In effect, the BiOp's justification for its "no jeopardy" conclusion was its link to this nonbinding plan, which was designed to affect agencies other than those controlling the operations of the federal hydroelectric system, the actions that triggered the BiOp. (20) Although this approach reflected an attempt to influence all aspects of the salmon life cycle, it deflected attention from salmon mortalities caused by hydroelectric operations. It also raised serious questions about whether a BiOp may lawfully assign responsibilities for avoiding jeopardy to agencies other than those whose proposed activities triggered ESA consultation requirements. (21) This Article analyzes the 2000 BiOp and the accompanying Federal Caucus plan. Part II considers the context in which the 2000 BiOp was promulgated, including widespread political opposition to the proposed breaching of the four federal dams on the Lower Snake River. Part III evaluates the BiOp itself, focusing on how NMFS managed to substitute hydroelectric performance standards and "offsite mitigation" for dam breaching and still produce a "no jeopardy" opinion. Part IV discusses the Federal Caucus plan, the success of which is critical to the BiOp's conclusions, and questions whether its promises will bear fruit. Part V evaluates the legal challenges to the 2000 BiOp and suggests that those challenges may succeed. The Article concludes that, even if the BiOp survives court challenges, the numerous uncertainties associated with its implementation make it an unlikely vehicle to restore imperiled Columbia Basin salmon runs. A salmon restoration plan more likely to succeed is that produced by the Columbia River tribes with treaty fishing rights, but that plan has been largely ignored or forgotten. (22) Consequently, it is hard to be optimistic that the promises made about salmon recovery in 2000 will reverse the past twenty years of failure. II. THE CONTEXT This Part places the 2000 BiOp on Columbia Basin hydroelectric operations in context by first examining the relevant provisions of the Endangered Species Act (ESA). Then, it explains the previous BiOp on Columbia Basin operations and the ensuing calls for breaching the Lower Snake River dams. A. A Brief Overview of the Endangered Species Act All federal agencies have an affirmative duty to ensure that actions they fund, authorize, or carry out are not "likely to jeopardize the continued existence" of listed endangered or threatened species or destroy or adversely modify their critical habitat. (23) To fulfill this obligation, a federal agency must consult with either NMFS or the United States Fish and Wildlife Service (FWS) concerning any proposed action that may affect a listed species or its habitat. (24) A biological opinion is the ultimate product of this consultation, in which the consulting agencies conclude whether a proposed action is likely to "jeopardize the continued existence" of a listed species or adversely modify or destroy its critical habitat. (25) The consulting agencies must use the best available commercial science in making jeopardy determinations. (26) If a consulting agency concludes that an action will likely cause jeopardy to the species or adverse modification to its critical habitat, the consulting agency must propose "reasonable and prudent alternatives" (RPAs) that will avoid jeopardy or adverse modification. (27) Jeopardy opinions are not legally binding on the action agencies; however, they carry significant weight with reviewing courts. (28) Thus, while action agencies are not required to abide by the consulting agencies' recommendations, their failure to do so will likely result in a court's conclusion that the action agency has violated its duty to avoid jeopardy to listed species. (29) In addition to avoiding jeopardy and adverse modification, all persons, including governmental agencies at all levels, are prohibited from "taking" endangered animals. (30) Despite this prohibition, government agencies may be excused from liability for taking listed species through an incidental take statement issued in conjunction with a "no-jeopardy" biological opinion. (31) Such a statement may include its own set of reasonable and prudent measures with which an agency must comply to minimize the impact of the allowed take. (32) The incidental take statement may cover any individual acting within its scope, even though the statement is issued specifically to the federal action agency. (33) Nonfederal agencies, private corporations, and individuals may also receive permission to incidentally take endangered animals by submitting a habitat conservation plan (HCP). (34) Based on the adequacy of the HCP and the findings specifically related to the proposed take, the consulting agency may issue an incidental take permit to nonfederal applicants. (35) For both federal and nonfederal actions, the underlying requirement is that incidental takings must avoid jeopardy to the listed species. (36) B. The Movement Toward Dam Removal NMFS's implementation of ESA protections through its various BiOps has not led to the recovery of listed salmon. Indeed, at the time NMFS issued its 1995 BiOp on the hydropower operations in the Columbia Basin, (37) only three stocks of salmon had been listed as endangered or threatened under the ESA. (38) Since 1995, NMFS has listed another nine species of Columbia Basin salmon as endangered or threatened. (39) Some critics have argued that these additional listings provide a strong indication, if not conclusive proof, that NMFS's BiOps have failed to stem the decline of salmon. (40) Even before NMFS issued its 1995 BiOp, however, salmon advocates had begun to call for dam breaching as the only sure way to restore salmon populations. (41) Cecil Andrus, the former governor of Idaho, first suggested that drawing down the four lower Snake River reservoirs in Idaho would improve juvenile salmon survival. (42) His suggestion was followed by a series of scientific reports that became progressively more adamant about the need to restore natural river flows and reduce reliance on artificial transportation. (43) The first plan to call for reservoir drawdowns and restricted artificial transportation was drafted by a coalition of state, federal, and tribal representatives. (44) The plan recommended drawing down the four lower Snake River reservoirs to "minimum operating pools" between April 15 and December 15 of each year and releasing water from upper basin reservoirs for flow augmentation. (45) The plan did not call for dam breaching; subsequent scientific reports, however, rapidly moved in that direction. In 1994, Indian treaty tribes and state and federal fish and wildlife agencies commissioned an independent scientific peer review to study the artificial transportation program. (46) The resulting report concluded that transportation would not halt the decline of listed salmon in the Snake River Basin. (47) The same year, the Northwest Power Planning Council included seasonal reservoir drawdowns and restricted reliance on artificial transportation in its Columbia Basin Fish and Wildlife Program. (48) In 1995, the National Research Council issued a report that endorsed artificial transportation in the short-term, while advocating for a return to natural river conditions in the long-term to achieve salmon recovery. (49) The treaty fishing tribes of the Columbia Basin, in contrast, offered no such compromise. In their 1995 salmon restoration plan, Wy-Kan-Ush-Mi Wa-Kish-Wit (The Spirit of the Salmon), (50) the tribes called for permanent reservoir drawdowns to restore natural river functions and the immediate end of artificial transportation. (51) The tribes' position found support in two subsequent scientific reports, one conducted by the Council's Independent Scientific Group in 1996 and the other by the Idaho Department of Fish and Game in 1998, both of which advocated a return to "normative river conditions" and an end to artificial transportation. (52) In 1998, NMFS's own scientists confirmed that permanent reservoir drawdowns, that is, dam breaching, offered the best chance for salmon survival and recovery. (53) Thus, by the time NMFS began drafting its 2000 BiOp, considerable scientific evidence favored dam breaching and a decreased reliance on artificial transport. (54) Political momentum, at least in some arenas, had also begun to swing toward dam breaching. At public hearings held in fifteen locations, including Seattle and Portland, regarding the draft 2000 BiOp and Federal Caucus plan, environmental groups generated numerous comments calling for dam breaching. (55) Oregon's Governor John Kitzhaber echoed their sentiment, reasoning that dam breaching was the only means to ensure survival of imperiled salmon. (56) The Seattle City Council also adopted a resolution calling for the breaching of the four Lower Snake River dams. (57) Finally, just before NMFS released its final 2000 BiOp, a coalition of more than 200 scientists urged former President Clinton to commit to breaching the four dams in the near future, arguing that "the weight of scientific evidence clearly" shows the need for immediate breaching. (58) However, these suggestions were ignored by NMFS. III. THE 2000 BIOP On December 21, 2000, NMFS released its BiOp on federal Columbia Basin dam operations and the accompanying juvenile salmon transportation program during the years 2001 to 2005. These dams include those operated by both the Corps of Engineers primarily for flood control, navigation, and hydropower generation, and by the Bureau of Reclamation, whose principal mission is irrigation. (59) The juvenile transportation program is a controversial mitigation measure which collects juvenile salmon in the upper basin, transports them by barge and truck past several dams, and releases them in the lower river below the dams. (60) Some critics charge that the transportation program has been ineffective at reducing the adverse effects the dams have on migrating salmon and masks the adverse effects of the dams by making it appear that there is a serious mitigation program in place. (61) This Part of the Article examines the BiOp's approach to avoiding jeopardy to listed salmon. Section A discusses NMFS's analysis of the species' status; section B considers its hydropower-related measures; section C examines offsite mitigation measures, the BiOp's principal means of avoiding jeopardy; section D discusses the BiOp's numerous planning and evaluation requirements; and section E explains the expansive "emergency exemption" that allowed the BPA to excuse itself from complying with essential features of the BiOp. (62) A. The Status of Columbia Basin Salmon A critical component of the 2000 BiOp was NMFS's evaluation of the salmon's current status and the likelihood that the species would survive as a result of the proposed agency actions and implementation of the RPA. In the 2000 BiOp, NMFS applied a five-step process that was developed in the 1995 BiOp for applying the jeopardy standard to listed salmon. (63) The five steps were 1) defining the current status and biological requirements for each listed species, 2) evaluating the "environmental baseline" and its relevance to the species' current status, (64) 3) ascertaining the effects of the proposed action on listed species, 4) determining whether the species could be expected to survive under the effects of the proposed action, in combination with the environmental baseline and other cumulative effects, and 5) specifying reasonable and prudent alternatives where an action was likely to jeopardize the continued existence of a listed species. (65) The starting point of this process, and indeed, a primary basis for the biological opinion, was NMFS's assessment of each species' status and risks. The risk calculation determines whether a proposed action will result "in a high likelihood of survival and a moderate to high likelihood of recovery for a listed species." (66) NMFS's definition of survival, therefore, had particular importance in analyzing the status of the species and the effects of the action. NMFS defined survival based on the risk of absolute extinction within 100 years. (67) In other words, survival only means that more than one adult fish of a species will return to spawn over a salmon generation. (68) NMFS rejected other possible assessments of survival, including assessments based on quasi-extinction levels such as 20, 50, or 100 fish, reasoning that the "extinction threshold of one fish is the only extinction threshold that has the same biological meaning regardless of which index stock or population is addressed." (69) Thus, under the 2000 BiOp's one-size-fits-all approach, an action will result in a high likelihood of survival as long as more than one fish returns over a salmon generation. Having defind an extremely low threshold for the term survival, NMFS then laid out a series of measures that the action agencies (and other federal, state, tribal, and local agencies not bound by the 2000 BiOp) must take to ensure the species' survival. While some of the measures specifically addressed the proposed action itself--Columbia Basin hydroelectric operations--many more involved actions independent of the proposed action. The following three sections discuss these measures. B. Hydropower-Related Measures The principal statutory mission of a BiOp is to ensure that federal actions avoid jeopardy to listed species. (70) The 2000 BiOp made "no jeopardy" determinations for the juvenile transportation program and for dam operations on four listed salmon species which spawn in the lower river below the dams. (71) But for eight upriver-spawning salmon species, NMFS concluded that proposed federal dam operations would likely jeopardize the continued existence and adversely modify designated critical habitat. (72) As a result, NMFS developed a "reasonable and prudent alternative" (RPA) under which dam operations could continue without jeopardizing the eight upriverlisted salmon species. (73) Most RPAs attempt to minimize the effects of proposed actions by changing the actions themselves. However, because earlier BiOps concerning Columbia Basin dam operations had made small changes in river flows without abating the decline of listed salmon, (74) NMFS broadened the scope of the 2000 RPA to address many factors unrelated to dam operations that contribute to the salmon's decline. Consequently, the new RPA specified relatively few operational changes to the dams, and those changes it did call for were often technical in nature. (75) A significant feature of the RPA was its reliance on annual plans, evaluations of ongoing actions, studies of possible alternatives, and calls for funding of offsite mitigation measures. Although these measures facilitate an adaptive management approach to salmon restoration (76) and give NMFS an oversight role concerning implementation of other agencies' actions, they also make it difficult to evaluate the sufficiency of the RPA, as it is unclear what concrete actions might result from the RPA's numerous studies, evaluations, reports, and requests for funding. Nor is it clear that reliance on future speculative responses to those studies is sufficient to satisfy the ESA's requirement of avoiding species jeopardy. (77) NMFS acknowledged that the RPA's hydropower measures will not by themselves avoid species jeopardy caused by hydroelectric operations since significant dam-caused mortalities will continue. (78) Thus, NMFS concluded that additional non-hydroelectric system measures--the "offsite mitigation" proposed in the basinwide recovery strategy accompanying the BiOp--would be necessary to avoid jeopardy. (79) AS a result, most of the 199 actions in the RPA called for offsite mitigation, and many involved studies instead of remedial actions. Further, several of the studies had no specified completion dates, (80) which may be a consequence of the uncertain authority NMFS possesses to require agencies not subject to section 7 of the ESA, including nonfederal agencies, to undertake offsite mitigation. The centerpiece of the RPA was a series of performance standards by which NMFS will judge the success of the 2000 BiOp. These standards were of three basic types: 1) population-based standards, aimed at producing populations adequate to ensure likely survival and recovery, 2) life-stage standards, which allocate restoration burdens among the hydroelectric system, habitat, harvest, and hatcheries (the four Hs), and 3) specific standards within each of the four Hs. (81) For example, a hydropower-specific performance standard for spilling water at a particular dam to facilitate dam passage might require that two-thirds of adult and juvenile fish survive dam passage. Spill that did not achieve that level of survival would not meet the performance standard. The RPA further divided performance standards into biological, physical, and programmatic standards. Performance standards measure the action agencies' success in implementing the requirements of the RPA and serve, in essence, as a means for NMFS to assess the agencies' adherence to the BiOp. (82) Physical standards represent the health of the Columbia Basin ecosystem and include such parameters as instream flow levels, access to habitat, and riparian conditions. (83) As with the performance standards, however, the 2000 BiOp did not set any target levels or parameters for evaluation. (84) Biological standards evaluate the health and viability of salmon, including measuring abundance, productivity trends, species diversity, and population distribution. (85) NMFS was unable to establish optimal levels, so it established a two-part surrogate test: 1) whether a population's rate of growth is greater in 2005 or 2008 than it was in 2000; and 2) whether the growth rate is greater than NMFS projected it would have been under the 1995 BiOp. (86) The key biological performance standard under this two-part test is what the agency called "lambda," that is, increases or decreases of life-cycle survival and annual population growth or decline. (87) Lambda basically represents a stock's current productivity based on observed populaton abundance. (88) The draft BiOp proposed to use lambda as the basic measurement of its succcess--if lambda was at least 1.1 NMFS would consider BiOp succesfull. (89) On the other hand, if lambda was 0.95 or below, NMFS would issue a failure report. (90) However in response to comments on the draft BiOps, NMFS diluted the significance of lambda, stating only that after five years it would measure "wheter population growth rate has improved enough relative to the level estimated in this biological opinion to maintain a high likelihood achieving the 2008 performance standards." (91) This determination would be the product of a complex four-part test. (92) The RPA's biological performance standards related to the hydroelectric system concerned estimated juvenile and adult survival standards NMFS expected from the best or most extensive actions that are biologically feasible and whithin the authority of the federal hydroelectric agencies. (93) Over a period of ten years, NMFS will assess the survival levels, comparing survival rates from 2000 with survival rates in 2005 and 2008. (94) From this comparison, NMFS anticipated that it would be able to determine if the actions specifically related to the hydrosystem are effectively abating salmon decline. (95) However, NMFS provided no indication of what level of survival it would consider a success or failure. 1. Flow Objectives The key hydroelectric operational requirements were the RPA's flow objectives, which NMFS basically adopted from the operating agencies' proposal. (96) The flow objectives for the Snake River at Lower Granite Dam ranged from 85 to 100 thousand cubic feet per second (kcfs) in the spring and 50 to 55 kcfs in the summery. (97) Flow objectives for the Lower Columbia were 220 to 260 kcfs in the spring, 200 kcfs in the summer, and 125 to 160 kcfs in the winter. (98) For the Upper Columbia, the RPA set a spring flow objective of 135 kcfs. (99) Specific flows within each of these ranges will be a function of forecasted water volume. (100) The RPA stated that the operating agencies will operate their dams and reservoirs "with the intent of meeting the flow objectives ... on both a seasonal and weekly average basis." (101) To accomplish these objectives, the operating agencies must 1) limit winter and spring drawdowns to increase spring flows and the probability of reservoir refill, 2) draft storage water from reservoirs in the summer to increase flows, and 3) provide minimum flows in the fall and winter to support mainstem spawning and incubation in the lower river below Bonneville Dam. (102) The RPA made clear that the flow objectives were not "hard constraints." (103) For example, it authorized drafting of reservoirs inconsistent with the flow objectives during water flow emergencies. (104) The RPA devoted specific attention to the ability of the Bureau of Reclamation (Bureau) to contribute water to increase streamflows. For example, the RPA enjoined the Bureau from contracting any additional water and required biological consultation on all renewals. (105) The Bureau must also 1) work to reduce streamflow depletions for its contracts, 2) pursue water conservation measures, 3) acquire water through purchases or changed operations from its upper Snake River projects, and 4) develop a plan to reduce illegal water use through "water spreading" within two years. (106) In addition, the RPA instructed the Bureau to install screens at canal intakes by March 2002, assess the water quality of irrigation return flows and submit to NMFS a detailed water quality plan by June 2001, and investigate the attraction of listed species into wasteways and implement any necessary structural or operational changes. (107) The RPA directed the Corps of Engineers (Corps) to conduct a flood control assessment analyzing the feasibility of modifying flood control operations to produce a high probability of reservoir refill while still providing high levels of flood protection. (108) Similarly, a revised operational plan for the Corps's Libby Dam aimed to lower the chance of overdrafting that reservoir in the fall, and to increase the probability of refilling the reservoir the following spring and summer. (109) 2. Water Quality Measures Poor water quality, especially due to high water temperatures and high levels of dissolved gas, is a major cause of Columbia Basin salmon mortalities. (110) While the RPA recognized the importance of reducing both temperature and dissolved gas levels for salmon survival and recovery, (111) it was not very specific how these reductions would occur. The RPA established a goal of achieving 110% of total dissolved gas in all salmon critical habitat within ten to fifteen years. (112) Achieving this goal would require completion of an ongoing Corps dissolved gas study and continued monitoring. (113) The RPA stated that if studies show that spill deflectors effectively reduce gas levels, the Corps should seek funding to construct them. (114) For temperature, the RPA called for the operating agencies to "move toward" achieving water quality standards in the short-term and meet the standards in the long-term. (115) But the only specific requirement the RPA imposed was for the operating agencies to study the effects of high temperatures on salmon and "work with" NMFS to develop a plan for a water temperature model by June 2001. (116) 3. Juvenile Fish Transportation Transporting juvenile fish by truck and barge has been a central and controversial aspect of salmon restoration for over two decades. (117) The 2000 BiOp continued this significant reliance on transportation, requiring maximum transportation in the spring from collection facilities at three dams on the lower Snake Riverm--Lower Granite, Little Goose, and Lower Monumental. (118) The RPA also required maximum transportation in the summer at McNary Dam on the lower Columbia River. (119) However, the RPA called for discontinuing spring transportation at McNary, where inriver passage, aided by spill, will be the priority for the lower Columbia. (120) These measures did not represent a significant change from the 1995-1999 BiOp. Indeed, they were proposed by the implementing agencies. (121) One small change concerned emphasizing barge transport over truck transport. (122) The RPA prescribed numerous studies comparing the efficiency of transportation to inriver migration; (123) if these studies show that transportation does not produce better survival than inriver migration, the Corps and BPA must improve inriver passage, (124) something fish advocates have long promoted. The BiOp did not specify how to accomplish this improvement. 4. Spill for Fish Passage Juvenile fish that cannot be collected for transport depend on spilling water around dams as the best means to bypass them. The RPA required an annual spill program for all mainstem federal dams. (125) It also set project-specific spills for most dams, adjusting several of the spill levels established by the 1995 BiOp. Most of these adjustments involved reducing spill levels to reflect limits imposed by dissolved gas "caps," set to reflect state water quality standards. For example, the 1995 BiOp set the spill level at Lower Granite Dam at eighty percent of instantaneous flow for twelve hours, but the gas cap made it impossible to meet the eighty percent level. (126) Consequently, the 2001 BiOp reduced the spill level to 60 kcfs. (127) Similar adjustments were made at other Lower Snake dams. (128) At two dams, Ice Harbor and John Day, the RPA increased spill levels to reflect installation of spillway deflectors. (129) In order to increase the system's spill capacity, the RPA directed Bonneville Power Administration (BPA) to develop a more efficient electric transmission system by 2005. (130) However, because new transmission facilities will require congressional approval and funding, the fate of this attempt to make hydroelectric operations more compatible with fish passage remains quite uncertain. 5. Other Hydropower-Related Measures The RPA contained numerous other hydropower-related measures, including setting reservoir levels. For example, according to the RPA, three of the lower Snake River dams must be operated within one foot of minimum operating pool from April 3 until adult fall chinook begin to enter the Snake River. (131) The fourth, Lower Granite Dam, will be operated within one foot of minimum operating pool from April 3 through November 15. (132) John Day reservoir will be operated within a foot-and-a-half of the minimum irrigation level. (133) The RPA adopted virtually all of these measures from the operating agencies' proposal. (134) The RPA directed the Corps to operate all power turbines to provide optimum fish passage survival by 2003, (135) called for a variety of measures to improve adult fish passage, (136) and prescribed improved methods of predator control. (137) As in the case of the reservoir levels, most of these measures were proposed by the operating agencies and represent little immediate change in the status quo. (138) 6. The Emergency Exemption Tucked into various parts of the hydropower measures was a short emergency exemption that authorizes action agencies to ignore the BiOp's measures for indefinite periods of time. (139) The broad language exemption states that [i]nterruptions or adjustments in water management actions may occur due to unforeseeable power system, flood control, or other emergencies. Such emergency actions should be viewed by the Action Agencies as a last resort and should not be used in place of the long-term investments necessary to allow full, uninterrupted implementation of the required reservoir operations while maintaining other project purposes, such as an adequate and reliable power system. (140) The exemption does not define what constitutes an emergency, particularly a power system emergency. (141) Nor does it require the action agencies to consult with NMFS prior to declaring an emergency. (142) Instead, the emergency exemption appears to give the action agencies unfettered discretion to define an emergency, thereby exempting themselves from the RPA's hydropower measures. This exemption was invoked repeatedly by BPA in the winter and spring of 2001. (143) C. Offsite Mitigation The 2000 BiOp made clear that hydropower-related actions will not by themselves avoid jeopardy to several listed salmon species. (144) Thus, the BiOp prescribed a series of what it termed offsite mitigation measures involving habitat protection, hatchery operations, and harvest controls. In many cases, the authority to implement the mitigation measure rests with agencies not responsible for operating the hydroelectric system. Since the ESA only gives consulting agencies authority to specify "reasonable and prudent measures" to minimize the adverse effect of federal actions subject to section 7 consultation, (145) the RPA links itself to the Basinwide Recovery Strategy developed by the Federal Caucus, (146) requiring the federal hydropower operators to contribute to the implementation of the recovery strategy by funding, studying, or coordinating actions that other entities will implement. (147) As discussed in Part V of this Article, it appears unlikely that an RPA can, consistent with the ESA, base a "no jeopardy" conclusion on actions of entities other than those of the "action agencies" (in this case, the federal hydropower operators) whose actions are the subject of consultation. (148) 1. Habitat Measures The RPA anticipated that its habitat measures could, in the short-run, improve areas used by salmon for rearing and migration, thereby improving survival rates. Over the long nm, it assumed the measures would protect existing high-quality habitat, restore degraded habitat, and prevent further habitat degradation. (149) The RPA divided habitat measures into two categories: those related to tributary habitat and those concerning estuarine habitat. The RPA required the Corps, the Bureau of Reclamation, and BPA to fund and initiate several programs to improve tributary habitat. It directed the Bureau to undertake flow, passage, and screening programs in three priority subbasins per year for five years. (150) BPA must fund programs to protect existing productive nonfederal habitat according to priorities to be developed by BPA and NMFS, (151) work with the Northwest Power Planning Council to develop and update subbasin assessments and fund projects on nonfederal land, and experiment with innovative ways of improving tributary streamflows, (152) such as establishing or funding a water broker to secure instream flows. (153) Funding is not all that the RPA required of the hydropower operators; they must also "work with" other agencies like the EPA and the U.S. Geological Survey to develop habitat improvement plans. (154) But the RPA never explained the consequences of a non-action agency's failure to implement its directives. (155) With respect to estuarine measures, the Corps and BPA received most of the RPA's attention, as it required those agencies to fund an inventory of estuarine habitat and, by 2003, a habitat plan addressing salmon needs in the estuary. (156) Eventually, the RPA called for the development of an estuary restoration program, to be coordinated with similar state programs, although it was not clear who would implement habitat measures on nonfederal lands. (157) The habitat measures illustrate two generic problems with the RPA. First, the habitat measures are heavily dependent on the implementation efforts of federal, state, local, and tribal governments, and other entities over which the RPA has no control. (158) Second, while estuarine restoration efforts may very well increase salmon productivity in the lower river, it is not at all clear how much they will benefit the imperiled upriver runs damaged by the dams. Undertaking lower river enhancement (mostly hatcheries in the past) to compensate for upriver losses has a long, unhappy history in the Columbia Basin. (159) It seems, moreover, flatly inconsistent with the ESA, which alms to avoid jeopardy to individual salmon runs. (160) 2. Harvest Measures While the federal hydropower operators can at least fund habitat measures implemented by others, they have no authority at all over harvest management. Perhaps in recognition of this lack of authority, the RPA merely instructs the hydropower operators to "work with" federal, state, and tribal fishery agencies to develop a plan to test and deploy selective harvest methods and gear in order to target unlisted fish and reduce incidental harvests of listed species to a minimum. (161) Beyond their deep pockets, the expertise that the federal hydropower operators bring to this endeavor is questionable at best. The RPA also required the federal hydropower operators to "work with" federal, state, and tribal fishery agencies as well as the Pacific Salmon Commission and the Pacific Fishery Management Council to develop procedures to estimate stock levels and harvest rates by 2003. (162) Again, while improved harvest techniques can surely help to increase the numbers of listed salmon escaping the fishery to spawn, what the federal hydropower operators can contribute in terms of expertise is no doubt nonexistent. Funding the efforts of others may eventually produce therapeutic results, but it is quite unclear whether promises to fund efforts, the consequences of which are mostly speculative and completely unrelated to hydropower operations, can serve to avoid the species jeopardy that NMFS concluded federal hydropower operations would otherwise produce. 3. Hatchery Measures The proposed actions relating to hatchery operations are a closer fit to the effects of hydropower operations than those of harvest management, since for years hatchery construction was the means by which hydropower boosters claimed the Pacific Northwest could have both cheap electricity and viable salmon runs. (163) The RPA required the federal hydropower operators to undertake a number of activities aimed at reforming hatchery operations. The most significant measure was for BPA to fund hatchery and genetic management plans (HGMPs), which aim to incorporate a standardized approach to developing and implementing artificial production efforts. (164) NMFS views HGMPs as fundamental to hatchery reform, and the RPA required each artificial production facility to have an HGMP that 1) defines the facility's purpose and goal, 2) examines how the facility's operations relate to a list of reform measures, and 3) includes a monitoring, research, and evaluation program. (165) Although, it seems clear that the RPA may require BPA to fund the development of HGMPs, whether it can require their completion and implementation to NMFS's satisfaction is hardly clear, especially with respect to nonfederal hatchery operators. The RPA required BPA to fund a marketing program for all hatchery fish and an "artificial propagation safety net program," which will authorize intervention with artificial production techniques designed to prevent extinction of a number of "particularly depressed" salmon stokcs. (166) Once the HGMPs have been completed, BPA must fund and the Corps must oversee construction of necessary structural improvements. (167) The Bureau of Reclamation was responsible for implementing HGMP reforms at hatcheries mitigating for salmon losses due to Grand Coulee Dam; BPA was responsible for implementing reforms at other federal and federally-funded hatcheries. (168) The RPA anticipated that reforms benefiting the most at-risk species could be implemented within three years. (169) D. Plans and Evaluations The 2000 BiOp's no jeopardy conclusion was based in important part on annual plans and echeduled evaluations. The RPA prescribed one-year and five-years plans that the federal hydropower operators must implement. Interestingly, the development of these plans was not left exclusively to the hydropower agencies, Instead, the RPA stated that the plans related to hydropower operations would be "coordinated through the NMFS Regional Implementation Forum, established in the 1995 Biological Opinion and led by the Implementation Team." (170) The goal of the forum is "to ensure the greatest possible technical and policy input in planning, funding and implementation decisions regarding the operation and configuration and implementation decisions of [the hydropower system]. (171) The team consists of representatives from federal, state, and tribal agencies. (172) However, the RPA disclaimed any intent that the Regional Implementation Forum would "dilute or remove the authority of any agency." (173) The RPA called for annual and five-year plans for water management from hydropower operations, capital investment, water quality, and operation and maintenance. (174) One-year plans focus on project-specific implementation of hydropower measures, while the five-year plans focus on mid-term to long-term actions. (175) Each plan must consider the current status of individually listed species, recent data and research, feasibility and timing of implementation, and the probability of success for each measure. (176) Offsite mitigation plans governing habitat, hatcheries, and harvest actions will not be prepared through the Regional Implementation Team, but instead by federal hydropower operators with the assistance of NMFS and FWS. (177) These plans are to include specific measures from the Basinwide Recovery Strategy that are the responsibility of the federal hydropower operators. (178) NMFS expected the habitat plans to "rely heavily" on the Northwest Power Planning Council's subbasin planning process to identify and develop habitat mitigation opportunities. (179) NMFS promised to review all plans for consistency with the RPA and issue findings as to whether they are adequate. (180) The RPA also established several types of evaluation processes. First, annual progress reports will detail the federal hydropower operators' progress toward implementing the annual plans and toward achieving pertinent performance standards. (181) If the annual reports indicate a failure of implementation or a failure to meet performance standards, the federal hydropower agencies must propose improvements in their one-year and five-year plans. (182) These failures, however, will not trigger reinitiation of ESA consultation or reconsideration of the decision not to recommend breaching of the Lower Snake River dams. In addition to the annual progress reports, the RPA established three mid-point evaluations--in 2003, 2005, and 2008--to ensure that the hydropower system continues to avoid jeopardy, and that the federal hydropower operators continue to monitor the status of listed species so their condition does not unexpectedly worsen. (183) The 2003 evaluation will evaluate the federal operators' success in implementing RPA actions, including whether they have obtained the necessary funding, initiated adequate studies and monitoring, begun offsite mitigation efforts, and adopted acceptable biological and physical performance standards. (184) If any failures can be remedied by actions within the agencies' authorities, NMFS will order them to take action; otherwise, NMFS will issue a "failure report," in which it will identify actions necessary to avoid jeopardy, including actions beyond the agencies' current authority. (185) A failure report concerning listed Snake River salmon, for example, could recommend that the Corps of Engineers seek congressional authority to breach the Lower Snake Dams. (186) The 2005 evaluation will address the status of the federal hydropower operators' one- and five-year plan development and implementation, the status of the listed species, and the effectiveness of RPA actions in achieving performance standards. (187) In the 2005 evaluation, NMFS promised to provide 1) an updated risk analysis, 2) an updated extinction analysis based on the lambda from the previous year, and 3) revised expected population growth rates, abundance, and distribution expectations attributable to offsite mitigation. (188) A positive 2005 evaluation will require evidence that the federal hydropower operators have implemented the actions in their one-and five-year plans; begun required research, implemented studies to evaluate offsite mitigation benefits, and met applicable performance standards. (189) As with the 2003 evaluation, a failure report will merely require federal hydropower operators to seek additional authority to take action to avoid jeopardy. (190) The 2008 evaluation is to focus less on implementation of plans and more on achievement of performance standards and actual improvement in run sizes. (191) NMFS will update its analysis on the condition of the species based on best available science, estimating changes attributable to changes in hydropower operations. (192) As with the 2005 evaluation, NMFS must conclude that the agencies have satisfied the performance standards to consider the RPA successful. Unlike the draft BiOp, which tied success to a lambda of 1.1, the 2000 BiOp failed to define a specific method for evaluating the necessary population growth rate to avoid jeopardy. (193) Whether this was due to NMFS's lack of faith in current assessment methods, or due to a belief that new science will produce a better method, was unclear. Still, NMFS committed itself to systematic evaluations after five and eight years to determine if the RPA is substantially meeting expectations. If it does not, the federal hydropower operators must amend their plans, seek new authority, or reinitiate ESA consultation. (194) IV. THE BASINWIDE SALlVION RECOVERY STRATEGY Because the BiOp acknowledged that federal hydroelectric operations would by themselves produce jeopardy to listed upriver salmon, (195) NMFS linked the BiOp to the Basinwide Salmon Recovery Strategy prepared by a coalition of federal agencies known as the Federal Caucus. (196) The goals of the strategy were more ambitious than those of the BiOp, which primarily concerned avoiding jeopardy. The essence of the strategy was to enlist all federal agencies whose actions offset the life cycle of Columbia Basin salmon to attempt to prevent extinction and to foster recovery of listed salmon. But while the strategy sought to extend salmon saving efforts beyond the hydroelectric system, the strategy is not an ESA document and does not contain enforceable promises. (197) Whether the BiOp satisfies the ESA through its conclusion of no species jeopardy, based on a nonbinding strategy implemented by agencies other than those subject to consultation, is an open question. (198) A. Goals and Objectives The strategy listed seven broad goals and four types of objectives it will pursue.(199) These goals were to 1) conserve salmon species to avoid extinction and foster long-term survival, 2) conserve ecosystem and watersheds upon which salmon depend, 3) assure tribal fishing rights and provide for nontribal fishing, 4) balance the needs of other species, 5) minimize adverse socio-economic effects on humans, 6) protect historic properties, and 7) consider resources of cultural importance to the tribes. (200) The strategy gave no indication of whether the two conservation goals had priority over the other goals, how it would balance salmon needs against the needs of other species, or how to weigh the goals should they conflict. The four types of objectives established by the strategy were biological, ecological, water quality, and socio-economic. The biological objectives aimed to 1) maintain and improve the current distribution of aquatic species and halt declining population trends within five to ten years, 2) establish increasing trends for naturally sustaining fish populations in each subregion within twenty-five years, 3) restore native distribution of fish and other aquatic species within twenty-five years, where feasible, and 4) conserve genetic diversity. (201) The long lead times and equivocal language make these biological objectives a difficult litmus by which to measure success. Moreover, a goal of reversing species decline within ten years hardly seems ambitious and, given the perilous condition of many upriver populations, (202) may countenance extinctions. This time frame also far exceeds the horizon of the 2000 BiOp, which anticipates tangible results from the RPA within three to five years. (203) The strategy's ecological objectives were to 1) prevent further degradation of water quality and habitat in the mainstem, tributaries, and estuary, and 2) protect existing high quality habitats, and 3) restore habitats on a priority basis. (204) The strategy's water quality objective was to meet state and tribal water quality standards in all critical habitats in the long term. (205) Socio-economic objectives included 1)selecting least expensive restoration and enhancement measures, 2)mitigating significant social and economic consequences, 3) seeking adequate funding for implementation, 4) reducing inefficiency and unnecessary costs by coordinating restoration efforts, 5) restoring salmon populations to levels supporting both treaty and non-treaty harvests, and 6) taking into account tribal socio-economic and cultural concerns. (206) All of these objectives were, the strategy claimed, based on best available science. (207) But as in the case of its goals, the strategy made no explicit effort to establish priorities among objectives, nor to explain how conflicting objectives might be resolved. For example, there was no discussion of how conservation objectives might be traded off against socio-economic objectives. The lack of priorities among objectives, coupled with their vagueness, made them appear to be merely aspirational. B. Performance Standards A key element of the Basinwide Recovery Strategy was a series of performance standards by which the success of the strategy would be measured on an interim and long-term basis. According to the Federal Caucus, "[performance standards] are the means for establishing the level of survival improvement in each life stage for salmon ... necessary for ... survival and recovery." (208) Failure to meet the standards would require agencies to take additional steps to ensure survival and recovery. (209) The strategy divided performance standards into three tiers. Tier 1 standards are population level measures, intended to measure the strategy's long-term success and applicable to all of the Hs: hydropower, habitat, hatcheries, and harvest. (210) There were two key Tier 1 measures, which called for 1)survival levels of better than one to one, measuring survival of one adult generation to the next, and 2) numbers of returning adults which, over time, must be increasing toward recovery levels. (211) Tier 3 standards are specific and measurable goals for each H. (212) Tier 3 habitat standards included improving egg-to-smolt productivity, greater compliance with water quality standards, and increased areas in which instream flow needs are met and where fish access is restored. (213) Tier 3 harvest standards called for maintaining minimum escapement rates and maintaining or reducing harvest rates of listed species. (214) Tier 3 hatchery standards included reducing or eliminating adverse hatchery impacts, preserving genetic diversity, and improving hatchery facilities. (215) Finally, Tier 3 hydropower standards were based on overall species survival, adult-and juvenile-specific survival increases and, like the 2000 BiOp, actual implementation of required actions in the RPA. (216) But unlike the Tier 1 standards, none of the Tier 3 standards set quantifiable targets. (217) Indeed, the strategy distinguished between performance standards that, as described above, are broad results that the strategy hoped to achieve, and performance measures, which are measurable targets to be achieved within each H. (218) It appears that the performance measures will not even be developed until 2003. (219) Tier 2 standards are both life-stage and H-specific performance standards. They basically represent a middle ground between the Tier 1 and Tier 3 standards. (220) For example, while Tier 1 standards measure the survival rates of the populations as a whole, Tier 2 standards measure the survival rates of each population at each life stage. (221) And while Tier 3 standards attempt to measure the implementation of H-specific actions, Tier 2 standards assess how H-specific actions are affecting each life stage of the salmon. (222) For example, while Tier 3 will assess whether habitat improvements have increased the number of stream miles in which instream flows are met, (223) Tier 2 standards will address how this increase in stream miles corresponds to salmon survival rates at each life stage. (224) However, because Tier 3 standards will apparently be immeasurable until the Federal Caucus actually develops performance measures in 2003, it remains to be seen how the agencies will effectively measure the impacts of H-specific actions on each life stage, as Tier 2 anticipates. (225) C. H-Specific Actions The most important aspects of the Federal Caucus's strategy was the various actions it proposed within each H. Because NMFS tiered its RPA so heavily to implementation of the strategy's habitat, harvest, and hatchery measures to conclude that the RPA would avoid species jeopardy, the strategy's proposed actions take on additional importance. Although the actions in the strategy went beyond the various actions included in the RPA, they ultimately included few specific actions that will have any immediate effects on salmon survival. 1. Habitat Actions The Federal Caucus made clear that restoration of tributary and estuary habitat would be the key to salmon recovery; therefore, these measures formed the backbone of the strategy. (226) The strategy recommended short-term and long-term actions, without defining those terms, for development and implementation of habitat restoration plans. (227) The strategy directed the federal agencies to perform the bulk of the habitat actions, but it also charged the states with several responsibilities under the habitat component of the strategy. The strategy called for the federal agencies to implement six categories of habitat actions: 1) develop recovery plans, 2) manage federal lands to protect fish, 3) restore estuary habitat, 41) restore tributary habitat, 5) improve malnstem habitat, and 6) establish comprehensive monitoring and evaluation programs. (228) NMFS assumed responsibility for the first task, development of recovery plans for the salmon covered by the 2000 BiOp. (229) The Federal Caucus assigned the second task, management of federal lands, to the United States Forest Service (USFS) and the Bureau of Land Management (BLM). (230) The caucus directed these two federal land management agencies to implement seven watershed restoration initiatives targeting core populations most at risk. They must implement multi-scale assessments of the species, accelerate land acquisitions to protect fish habitat, protect existing high quality habitat, and promote restoration in high priority subbasins. (231) The strategy also directed the two agencies to "provide a base for habitat protection" through implementing the Northwest Forest Plan, which governs federal land management in and to the west of the Cascade Mountains, (232) and the Interior Columbia Basin Ecosystem Management Plan (ICBEMP), which aims to regulate land management east of the Cascades. (233) The strategy relied heavily on implementation of the ICBEMP, which would amend sixty-two federal land use plans in the interior Columbia Basin. (234) The ICBEMP, however, seems to have been stillborn. (235) The Federal Caucus strategy assigned primary responsibility for estuarine habitat restoration to the 2000 BiOp's action agencies (the Corps, BPA, and the Bureau). As with the federal lands, the strategy left estuary restoration primarily to the implementation of other comprehensive programs, including the Lower Columbia River Estuary Program and the Lower Columbia River Greenway Program, which protects wetland and upland habitat along the Lower Columbia River. (236) The estuary measures also included development of habitat restoration plans, implementation of monitoring and evaluation programs, and prioritization of habitats in greatest need of protection and restoration. (237) The Federal Caucus charged the USFS and BLM, along with BPA and the Bureau, with restoration of tributary habitat. Although most of the tributary actions involved funding and assisting states with their own habitat restoration actions, (238) the strategy gave the federal agencies responsibility for rapid implementation of restoration activities that could have immediate effects on salmon and their habitat. Specifically, the caucus directed the agencies to repair flow, screening, and passage problems in the Methow, Upper John Day, and Lemhi subbasins in 2001. (239) Although the strategy did not specify how the agencies would repair the problems, this level of detail, including the names of the subbasins and date of implementation, is absent from most other parts of the strategy. (240) The basinwide strategy envisioned that the states would play a significant role in protecting and restoring salmon habitat. For tributaries, the strategy expected states to develop and implement total maximum daily loads (241) within five years, establish instream flows for anadromous fish needs, establish programs for fish screens, and reform and enforce land use regulations on lands bordering fish-bearing streams. (242) For estuaries, the strategy expected the states of Oregon and Washington to facilitate implementation of the Lower Columbia River Estuary Program. (243) 2. Harvest Actions Despite the Federal Caucus's acknowledgment that harvest rates for listed salmon are already so low that further harvest reductions will not likely have tangible benefits, (244) the strategy nonetheless recommended that federal agencies implement further harvest reductions. (245) Otherwise, in large part, the strategy recommended maintenance of the status quo through continued implementation of the Pacific Salmon Treaty and United States v. Oregon. (246) Other proposed federal and state conservation measures included expansion of selective fishery techniques, managing fisheries based on annual abundance levels, and managing mixed stock fisheries based on the abundance levels of the natural stocks within the mixed stock. (247) At the same time, the strategy advocated reallocating the ESA conservation burden so that tribes would no longer bear the brunt of ESA harvest restrictions. (248) The strategy also proposed increasing salmon harvest in ways that would not harm listed evolutionary significant traits, (249) but it did not describe how such increases could take place. 3. Hatchery Actions To achieve the Federal Caucus's overarching goal "to reduce or eliminate adverse genetic, ecological, and management effects of artificial production on natural production while retaining and enhancing the potential of hatcheries to contribute to basinwide objectives for conservation and recovery," the strategy proposed to develop plans and implement unspecified programs. (250) For the federal agencies, the strategy recommended measures to 1) reform existing production facilities through development and implementation of HGMPs, 2) protect weak stocks by expanding the "safety net" program and using "a variety of conservation hatchery techniques to aid the recovery effort," 3) reduce uncertainties associated with hatchery production through implementing aggressive monitoring and evaluations programs, and 4) increase tribal co-management by transferring up to four existing hatcheries or responsibility for facility operation to tribes. (251) The Federal Caucus expected the states to prepare and implement improved HGMPs at state-run hatcheries and to "support" safety net programs. (252) As with habitat and harvest measures, the caucus did not impose requirements on tribes, even though it expected tribes to become more actively involved in hatchery operations. (253) However, it did expect Congress to provide funding for the safety net program, monitoring, and evaluation. (254) The strategy offered no specific deadlines for implementing the various actions it prescribed. 4. Hydropower Actions The strategy's hydropower measures largely mirror those included in the 2000 BiOp. (255) Indeed, they include implementing the BiOp's passage improvements, improving flows, continuing fish transportation, and working to improve water quality. (256) In addition, the strategy also advised NMFS and the Federal Energy Regulatory Commission (FERC) to improve nonfederal hydropower operations by working to complete an HCP for dams along the Mid-Columbia River and by using FERC relicensing and the ESA to order facility improvements for fish passage and flows. (257) Other than these minor and somewhat vague prescriptions, the strategy's hydropower actions did not require the Federal Caucus agencies to alter the hydropower status quo. In sum, the various actions included in the Basinwide Salmon Recovery Strategy closely resembled the offsite mitigation actions contained in the 2000 BiOp. They called for the development of plans, studies and evaluations; they recommended changes to improve ongoing management and support other activities; and they made suggestions to implement a limited number of specific actions but set few deadlines for implementation. (258) The main role of the strategy seems to be to provide a mechanism to allocate the funding called for by the 2000 BiOp. (259) Just as it is difficult to conclude that the 2000 BiOp's requirements of monitoring, plan development, and funding will effectively and immediately mitigate the ongoing harm to salmon caused by Columbia Basin dam operations, it appears equally unlikely that the Federal Caucus' strategy adds any significant immediate salmon mitigation. D. Best Available Science The Federal Caucus identified seven scientific principles which it claimed governed its strategy. These principles were 1) conservation of Columbia Basin fish and aquatic species must address all aspects of the ecosystem and the species' lifecycle; 2) conservation requires a network of high quality, interconnected habitats and high water quality; 3) conservation requires preservation of life history diversity, genetic diversity, and metapopulation organization; 4) conservation requires re-establishment of the nutrient cycle provided by decaying fish carcasses to effectively cycle nutrients from the ocean to freshwater; 5) conservation depends on managing growing human activity to achieve suitable ecosystem conditions; 6) research and technology can complement on-the-ground actions but not replace them; and 7) the status of salmon populations is a function of abundance, productivity, population structure, and genetic diversity. (260) Several of these principles seemed to echo the ecosystem management approach espoused in the Northwest Power Planning Council's Return to the River study. (261) The Federal Caucus employed several scientific methodologies, relying primarily on the Cumulative Risk Initiative (CRI), a NMFS-developed, computer-modeling population assessment tool that has been the subject of considerable debate within the scientific and conservation communities. (262) The strategy described the CRI as a tool to assess population trends and the impact of various actions on those trends, by estimating population growth rates and then using the estimated growth rate to assess the risk of extinction or decrease in abundance. (263) According to the Federal Caucus, the CRI can also analyze how much survival improvements at particular life stages are necessary for overall population growth rates. (264) The caucus also referenced, but did not appear to rely upon, the Plan for Analyzing and Testing Hypotheses (PATH), a joint modeling effort between federal, state, and tribal agencies developed to predict future salmon populations under a variety of management actions. (265) As discussed below, this reliance on the CRI (in which NMFS scientists concluded that protection of habitat, reduction in harvest, and improvement in hatcheries would adequately abate salmon declines) rather than PATH (in which federal, state, and tribal scientists concluded that dam breaching provided the most viable option for salmon recovery) led to considerable criticism from salmon advocates. (266) V. THE LEGALITY OF THE 2000 BIOP Perhaps predictably, the adequacy of the 2000 BiOp was quickly called into question. Prior to the release of the BiOp, salmon advocates urged NMFS to pursue the possibility of breaching the four Lower Snake River Dams. (267) It seems likely that any decision short of breaching would have triggered close scrutiny of the BiOp. Less predictably, however, two other factors combined to immediately raise doubts about NMFS's projections of salmon survival and recovery resulting from implementation of the 2000 BiOp. The Pacific Northwest found itself in the middle of a severe drought, in a year that would end as one of the driest on record. (268) At the same time, the failure of California's energy deregulation scheme and talk of an energy crisis triggered West-wide concern about electricity shortages. (269) BPA, for its part, maintained that it could not produce the electricity necessary to meet its contractual commitments at reasonable costs and comply with the 2000 BiOp at the same time. (270) As a result, BPA invoked the emergency exemption in the 2000 BiOp to excuse itself from storing water for salmon migration. (271) Litigation was inevitable. In May 2001, a number of environmental groups and fishing organizations (collectively referred to as National Wildlife Federation (NWF), which was the lead plaintiff) filed suit challenging the legality of the 2000 BiOp. (272) This Part describes the claims in NWF's suit. It then considers the merits of those claims in light of relevant case law. This Part concludes that, even though NWF must show that NMFS acted arbitrarily, capriciously, and contrary to the ESA in developing the 2000 BiOp, NWF will likely meet that high standard in this case. (273) A. National Wildlife Federation v. NMFS: An Overview of the Allegations NWF challenged the 2000 BiOp in the federal District Court of Oregon. (274) The environmentalists alleged that the 2000 BiOp suffered the following deficiencies: 1) NMFS failed to apply the best available scientific information in assessing the status of the listed salmon; 2) the RPA illegally relied on speculative and voluntary actions by parties not bound by the 2000 BiOp; 3) the RPA failed to analyze the effects of the emergency exemption; 4) the RPA was overly optimistic and failed to include rational justifications for NMFS's no jeopardy finding; and 5)NMFS's incidental take statement was contrary to the ESA because it failed to consider the cumulative impacts of other incidental takes that NMFS had already authorized. (275) The plaintiffs stressed that, since NMFS based its no jeopardy finding on the RPA's actions "taken together," the inadequacy of some of the actions called for in the RPA made the RPA, and thus the entire 2000 BiOp, deficient. (276) 1. The Status of the Listed Species NWF alleged that, in describing the baseline status of the listed species, NMFS failed to use best available science, as required by the ESA. (277) Specifically, the environmentalists challenged NMFS's calculation of the baseline population and NMFS's definition of survival, (278) They claimed that the BiOp's assumption that salmon populations have declined at a constant rate ignored best available science, (279) whith they maintained indicates that the actual population decline standard shows that salmon populations have declined at an accelerating rate. (280) NWF also maintained that in adopting a one-fish survival standard, under which a salmon population would be considered to not be in jeopardy as long as more than one adult returned to spawn, NMFS failed to consider credible data indicating that stocks exceeding the one-fish standard are very much at risk of extinction. (281) Therefore, accordingto NWF, despite considerable scientific evidence showing that salmon are in fact in great peril, NMFS underestimated the magnitude and immediacy of the threats to the species. (282) 2. The Adequacy of the RPA NWF also challenged NMFS's use of the RPA, arguing that NMFS arbitrarily and capriciously relied on speculative and voluntary actions to reach its no-jeopardy conclusion. (283) The environmentalists calculated that more than one-third of the improvements that NMFS identified as necessary to avoid jeopardy and adverse modification involve non-hydroelectric system (and non-harvest) measures, most of which would be carried out by agencies other than the action agencies. (284) Because NMFS acknowledged that most of the survival improvements needed to avoid jeopardy must come from federal and nonfederal entities not bound by the 2000 BiOp, (285) the plaintiffs asserted that NMFS was basing its no jeopardy conclusion on speculative and unidentified future actions, in violation of the plain language of the ESA regulations, which prohibit the agency from considering future federal actions of other agencies and uncertain future actions by state and private entities. (286) NWF further alleged that NMFS's reliance on undefined measures was arbitrary and capricious because measures in the RPA failed to conform to the ESA regulations, which define RPA measures as those that "can be taken by the Federal agency or applicant in implementing the agency action." (287) NWF also argued that NMFS's reliance on the measures in the RPA was arbitrary and capricious because NMFS assumed that the benefits from these actions would accrue immediately, even though some would not be implemented for up to ten years. (288) Addressing NMFS's assertion in the 2000 BiOp that its no-jeopardy finding was based on a qualitative assessment of the success of these future actions, the environmentalists argued that there was no evidence supporting NMFS's alleged qualitative assessment. (289) They also challenged NMFS's use of a planning and evaluation framework to develop actions, rather than actually prescribing specific actions to avoid jeopardy. (290) NWF claimed that a monitoring and evaluation program could not satisfy the requirements of an RPA because, while valuable, monitoring and evaluation simply have no tangible effects on listed species. (291) In short, the environmentalists maintained that planning, monitoring, and future speculative activities cannot substitute for actual and immediate actions designed to avoid or mitigate jeopardy. (292) 3. The Emergency Exemption The Plaintiffs also challenged the BiOp's inclusion of the broad emergency exemption excusing the action agencies from implementing parts of the RPA. (293) In particular, they noted that this exemption excused the action agencies' deviations from the BiOp's prescriptions about saving water to fulfill spring and summer river flow and water spill requirements, despite the fact that NMFS based its no-jeopardy finding on increased flow and spill. (294) And because NMFS never assessed the effects of the emergency exemption on listed salmon if the action agencies invoked it, NWF argued that NMFS's no jeopardy determination based on an RPA with such broad exemptions was arbitrary and contrary to the ESA. (295) 4. NMFS's Incidental Take Statement and the Juvenile Fish Transportation Program Finally, the environmentalists challenged NMFS's issuance of an incidental take statement, alleging that NMFS failed to analyze the "additive and combined effects" of the 2000 BiOp incidental take statement and other incidental take authorizations for the same species issued in other biological opinions. (296) They claimed that NMFS's failure to track or even evaluate the amount of incidental take authorized by the agency violated the ESA requirement to ensure that agency actions avoid jeopardy to the listed species. (297) In addition, NWF also argued that, by allowing the Corps to transport listed salmon in barges and trucks, NMFS ignored the definition of jeopardy and adverse modification, (298) and other provisions of the ESA that allow the removal of a species from the wild only under circumstances not present in the Columbia Basin. (299) 5. The NWF Case in a Nutshell As detailed in the succeeding sections, NWF's challenge to the 2000 BiOp could succeed, based on the language of the ESA, its regulations, and existing case law. First, as the environmentalists argued, the ESA requires NMFS to use best available science in assessing the status of a species and determining if an action will jeopardize a species or modify its critical habitat. (300) NMFS's determination that a species would not be in jeopardy even if only two individuals were to return to spawn, despite data showing that populations with as many as one hundred individuals are at risk of extinction, does not seem to be based on best available science. (301) Second, the RPA imposed few new obligations on the action agencies, and thus appeared unlikely to avoid jeopardy. Indeed, between the RPA and the Federal Caucus strategy, NMFS appeared to construct a BiOp based largely on speculation and wishful thinking, instead of designing a BiOp satisfying the requirements of the ESA. Third, the broad emergency exemption, which appears to be unprecedented, also seems without legal support. Finally, NMFS's failure to estimate the cumulative impacts of its various incidental take authorizations contradicts relevant case law requiring agencies to account for the number of species that will be legally taken pursuant to an incidental take authorization. (302) Indeed, the only claim that appears unlikely to succeed is NWF's challenge to the juvenile fish transportation program. The reason for this is not so much that the law authorizes artificial transport but because it seems unlikely that the courts will reverse Judge Marsh's 1997 decision upholding NMFS's reliance on transportation, despite that program's failure to abate salmon decline, and the judge's personal doubts about the wisdom of NMFS's assessment of risks. (303) B. Best Available Science The ESA requires agencies to use "best scientific and commercial data available" in determining if an action will jeopardize a species. (304) Some courts have determined that using "best available science" does not necessarily require agencies to develop their own set of scientific data where data is incomplete. (305) However, agencies cannot ignore relevant scientific information, particularly where that information contradicts the information on which the agency relies in reaching a jeopardy determination. (306) In Idaho Department of Fish and Game v. National Marine Fisheries Service (IDFG v. NMFS), Judge Malcolm Marsh analyzed NMFS's 1993 BiOp regarding the operation of the Federal Columbia River Power System (FCRPS). The plaintiffs, the Idaho Department of Fish and Game and the state of Oregon, argued that NMFS failed to use the "best available science" in developing the BiOp, because the agency neglected to consider alternatives to its own science when it established the baseline for salmon survival. (307) NMFS decided to use a baseline based on population figures for salmon obtained between 1986 and 1990. (308) In choosing these years, NMFS ignored the fact that population numbers were depressed due to a drought and other conditions. (309) NMFS also ignored data and information from state and tribal scientists. (310) Judge Marsh ruled that ignoring available information in setting the baseline violated the ESA directive to use "best available science. (311) He also advised NMFS that to satisfy this requirement NMFS must consider "significant information and data from well-qualified scientists ... from the states and tribes." (312) It did not appear that NMFS has followed that advice in developing the 2000 BiOp and the accompanying RPA. NWF maintained that NMFS once again failed to apply "best available science" in establishing the baseline status of the species in the 2000 BiOp. This time, instead of challenging the time period for analysis, (313) the plaintiffs challenged NMFS's definition of survival and some basic assumptions about salmon population decline. (314) Both challenges involve NMFS's alleged disregard of relevant scientific information contradicting the agency's assumptions. Although not expressly mentioned in the environmentalists' complaint, the challenge to NMFS's failure to apply best available science concerns NMFS's rejection of the Plan for Analyzing and Testing Hypotheses (PATH)--a joint effort between federal, state, and tribal agencies--in favor of the Cumulative Risk Initiative (CRI)--an extinction model created by NMFS's scientists alone. (315) Both PATH and the CRI attempt to predict, through modeling, when salmon are likely to become extinct based on their current rate of decline and what actions are likely to result in a decreased rate of decline. (316) Both PATH and the CRI concluded that salmon continue to decline at accelerating rates, and that, for Snake River salmon, dam breaching would provide the best solution for abating salmon decline and avoiding extinction. But the CRI predicted that offsite mitigation actions could provide for enough population stability so that dam breaching could be delayed, at least in the short term. (317) The basis of CRI's predictions was its absolute extinction standard. (318) This exceptionally narrow standard for extinction, which NMFS applied in the 2000 BiOp, effectively allowed NMFS to conclude that, even where salmon populations continue to plummet, they have considerably more time before they actually become extinct. (319) Scientific reviews have criticized the CRI's high-risk extinction standard, claiming that the absolute extinction standard fails to account for the fact that once species reach particularly low population levels they effectively reach a point of no return, at which the species will inevitably become extinct, even if more than one member of the species remains. (320) Reviewers also pointed out that the CRI's extinction modeling--as well as its conclusion that immediate dam breaching is not necessary--was grounded on the erroneous assumption that salmon populations would continue to decline at constant rates. (321) In reality, salmon populations have been declining at an accelerated rate. (322) The CRI also ignored the possibility that conditions affecting salmon, such as habitat availability and quality, may decline at inconsistent rates. (323) By using an absolute extinction standard and assuming a constant rate of decline in the CRI modeling process, NMFS was able to assume that salmon have considerably more time until they become extinct. (324) This conclusion, in turn, justified NMFS's decision to rely on offsite mitigation and future implementation of as yet undeveloped plans to conclude that implementation of the RPA would avoid jeopardy. NMFS also ignored numerous other scientific models and reports, which have concluded that several upriver salmon runs face imminent extinction--within fifteen to twenty years---unless major infrastructure and systematic changes can be immediately implemented. (325) Finally, it remains unclear whether even the CRI modeling would justify the exceptionally narrow one-fish standard that NMFS ultimately used. However, unlike in IDFG v. NMFS, NMFS did not completely disregard other scientific information. Instead, in the 2000 BiOp's definition of survival, NMFS acknowledged that other standards of survival exist and, indeed, that NMFS used a different standard of survival in the 1995 BiOp. (326) But NMFS noted that the 1995 standard was criticized by various scientific review panels for failing to account sufficiently for the risk of extinction and for establishing confusing survival thresholds that had no significant meaning. (327) Because NMFS addressed these other scientific reports directly, this part of NWF's challenge may not bear fruit. Nonetheless, NMFS's one-fish survival standard seems unlikely to satisfy the ESA's "best available science" requirement. NMFS provided little justification for the one-fish standard, except to say that it is less ambiguous than any potential "quasi-extinction" levels and can be readily applied to all of the listed populations. (328) Although the use of the one-fish survival threshold may be convenient, it is not necessarily scientifically justifiable. As NWF noted in its complaint, NMFS failed to address its own scientists' conclusions in the draft CRI that a ninety percent population decline for listed salmon is the best measure of risk of extinction. (329) NMFS also never explained why it assumed that salmon are declining at a constant rate, despite considerable evidence to the contrary. (330) NMFS's failure to address these contradictions, particularly when they come from the agency's own scientists, increases the likelihood that a court may conclude that NMFS did not use the "best available science." C. The Legality of the RPA The bulk of the 2000 BiOp outlined some 199 actions comprising the "reasonable and prudent alternative" that theoretically will allow the Columbia River hydrosystem to continue operating while avoiding species jeopardy. (331) NMFS's use of the RPA seems questionable on several fronts. First, NMFS grounded the RPA largely on the Federal Caucus plan, which, as discussed above, is a non binding document calling primarily for the voluntary development of habitat restoration plans. (332) Second, NMFS based its conclusion on the RPA avoiding jeopardy on many actions that had no definite implementation or completion dates. (333) Third, many RPA actions--either with or without deadlines--involve little more than studies and investigations. (334) Whether NMFS can adequately justify its reliance on voluntary, offsite, and indirect mitigation in an RPA is questionable. Indeed, if a court determines that NMFS cannot rely on these unenforceable promises, the RPA will be reduced to two main components: spill for passage and artificial transportation. But even NMFS acknowledged that, by themselves, these two actions will not avoid jeopardy. (335) 1. Relying on Non-Action Agencies NMFS's reliance on non-action agencies to perform offsite mitigation seems unlikely to withstand a court challenge. The language of the ESA and its regulations does not authorize a no-jeopardy opinion based on the actions of parties that are not bound by the RPA or the BiOp. (336) Instead, the statute clearly anticipates that RPAs will be implemented by the action agencies. (337) The regulatory definition of reasonable and prudent alternatives is even more explicit, defining RPAs as actions "that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction." (338) NMFS's reliance on offsite mitigation performed by non-action agencies is hard to square with these definitions. But it is true that courts have not insisted that only action agencies have responsibility for mitigation measures required by an RPA. For example, in Sierra Club v. Marsh, (339) environmentalists challenged the Army Corps of Engineers's failure to reinitiate consultation on a jeopardy BiOp that relied on non-action agencies to perform "mitigation" to result in a no-jeopardy opinion. (340) As the action agency, the Corps initially consulted with FWS concerning wetland fills associated with a highway and flood control project in San Diego County. (341) FWS issued a BiOp that concluded the project would jeopardize two endangered bird species, the California least tern and light-footed clapper rail, but it allowed the Corps to acquire mitigation lands to offset the jeopardy. (342) Because the Corps could not acquire the lands without congressional funding, the Corps entered into an agreement with San Diego County, under which the county would acquire the mitigation property and transfer it to the Corps. (343) Once the agreement was executed, construction on the highway began, although the mitigation lands had not yet been acquired. (344) After project construction began, the county failed to perform as required, and the Corps found itself involved in a contractual dispute in an effort to obtain the mitigation lands. (345) Despite the dispute, the Corps refused to reinitiate consultation with FWS. (346) After the district court upheld the Corps's refusal to consult, the Ninth Circuit reversed, ruling that the ESA required the Corps to reinitiate consultation when terms of a biological opinion are no longer met. (347) The court noted that FWS based its no-jeopardy opinion on the performance of mitigation measures and that, once the Corps lacked the certain ability to obtain the mitigation lands, the uncertainty required the Corps to reinitiate consultation. (348) The court stressed that "the risk that the [agency] might not prevail must be borne by the project, not by the endangered species." (349) Although the court concluded that, once the Corps lost control over implementation of mitigation measures, it had a duty to reinitiate consultation, it did not expressly state that responsibility for implementation of the BiOp and RPA are exclusively in the hands of the action agency. (350) Instead the court made clear that "[w]e do not hold that every modification of or uncertainty in a complex and lengthy project requires the action agency to stop and reinitiate consultation." (351) Despite this judicial equivocation, the regulations implementing the ESA seem quite clear. The regulatory definition of an RPA is an action that can be implemented consistent with the scope of the action agency's legal authority and jurisdiction. (352) It is clear that the RPA in the 2000 BiOp goes well beyond the scope of authority and jurisdiction of the BPA, the Corps, and the Bureau. Indeed, the entirety of the RPA's offsite mitigation measures involved either lands that none of the action agencies control, or actions over which they have no legal authority. (353) Even if NMFS attempts to defend its reliance on the performance of non-action agencies of offsite mitigation measures by arguing the action agencies at least have authority to provide funding for the projects, (354) funding authority would not appear to satisfy the regulations, which make clear that an RPA must be within both an action agency's authority and jurisdiction. (355) Controlling salmon harvests, for example, falls nowhere near the jurisdiction of any of the action agencies. (356) Thus, since the RPA relies so heavily on offsite mitigation, almost none of which falls within the action agencies' jurisdiction and authority, NMFS's reliance on the RPA to reach a no-jeopardy conclusion is quite likely arbitrary, capricious, and contrary to the ESA. 2. Relying on Offsite Mitigation Involving Studies and Investigations with Uncertain Implementation The ESA and its regulations do not specify whether NMFS or an action agency can approve or an action agency can rely on non binding offsite mitigation in an RPA designed to produce a no-jeopardy biological opinion. (357) To date, courts have been willing to allow offsite and future mitigation in an RPA even when the proposed action is ongoing. (358) However, where that offsite mitigation is merely speculative, it appears unlikely that it can satisfy the requirements of the ESA. Because the 2000 BiOp neither clearly articulated how the RPA would avoid jeopardy, nor how future studies and promised actions would mitigate the ongoing harm to listed salmon caused by the Columbia Basin hydroelectric operations, NMFS's reliance on these future studies and offsite mitigation appears to violate the ESA. Reasonable and prudent alternatives are actions that an agency can take without jeopardizing a listed species. The statute seems to require RPAs to avoid jeopardy at all stages of a project's implementation. Likewise, since RPAs provide a specific alternative to a proposed action, future studies and offsite mitigation that allow the proposed action to proceed would probably violate the ESA. Because the 2000 BiOp neither clearly articulated how the RPA would avoid jeopardy, nor how future studies and promised actions would mitigate the ongoing harm to listed salmon caused by Columbia Basin hydroelectric operations, NMFS's reliance on these future studies and offsite mitigation appears to violate the ESA. Although it might seem that courts would strictly construe RPAs to ensure that they will immediately and unequivocally avoid jeopardy to a species, the Ninth Circuit has fashioned a broad interpretation of RPAs. (359) For example, in Southwest Center for Biological Diversity v. Bureau of Reclamation, environmentalists challenged the FWS's promulgation of an RPA that contained short- and long-term actions designed to mitigate harm to the Southwestern Willow Flycatcher, an endangered bird. (360) The Bureau proposed increasing water levels at Lake Mead, which, as a result of a drought, had unexpectedly become primary habitat for the flycatcher. (361) In a draft BiOp, FWS required the Bureau to keep Lake Mead at a lower water level to provide habitat for the flycatcher and maintain a lower elevation at nearby Roosevelt Lake until the FWS found other suitable habitat. (362) But after the Bureau informed FWS that it lacked discretion to maintain low water elevations at Lake Mead for endangered species protection, FWS issued a revised BiOp and RPA that allowed the Bureau to inundate all flycatcher habitat at Lake Mead and forego the extra conservation space at Roosevelt Lake. (363) However, the revised RPA required the Bureau to undertake short-term mitigation measures by acquiring 1400 acres of unprotected habitat, none of which had to be obtained before Lake Mead was filled. (364) In the long term, the RPA required the Bureau to work with a multi-species conservation program, a cooperative federal/state/tribal/private effort to conserve listed species in the southwestern United States. (365) This program aimed to provide protection beyond the five years of the BiOp's applicability. (366) Importantly, FWS concluded that jeopardy could be avoided only if the long-term measures of the RPA were put in place. (367) However, because FWS determined that the flycatcher would survive for eighteen months until the first 500 acres of substitute habitat were obtained, and then another two years until the Bureau purchased more habitat, the Ninth Circuit said that FWS' reliance on future measures, including the Multi-Species Conservation Program (MSCP), was reasonable and upheld the BiOp and RPA. (368) Although the flycatcher case might seem to suggest that NWF's challenge to the 2000 BiOp will fail, several distinctions between the two BiOps point in the opposite direction. First, unlike the NMFS 2000 BiOp, in the flycatcher case FWS determined that the species would survive for a year-and-a-half without any of the RPA measures and an additional two years after 500 acres of suitable habitat was obtained. (369) In contrast, NMFS made clear in the 2000 BiOp the actions that the agencies must immediately implement, including spill measures and development of plans, will not by themselves avoid jeopardy. (370) Instead, the listed salmon's survival is a function of the immediate implementation of offsite mitigation measures, many of which, under the BiOp's terms, had either no implementation deadlines or deadlines of up to ten years or more. (371) Therefore, unlike the flycatcher case, NMFS cannot argue that implementation of future RPA measures will immediately avoid jeopardy. Second, in the flycatcher case, FWS had imposed deadlines on specific RPA measures, and based its no-jeopardy determination on the assumption that the flycatcher would survive as long as those measures were performed by the specified times. (372) In contrast, when the 2000 BiOp included deadlines, they were often deadlines for the beginning of studies or the development of plans, instead of the implementating specific actions. (373) Moreover, just as NMFS made no determination that specific RPA measures would avoid jeopardy while others were being developed, NMFS made no prediction of how long the salmon could survive above the jeopardy threshold without implementation of the plans. Third, while FWS ultimately based its no-jeopardy finding in the flycatcher case on the Bureau's participation in the multi-species program, FWS also determined that the procurement of additional flycatcher habitat would avoid jeopardy until that program was implemented and ecological restoration was underway. (374) But in the 2000 BiOp, NMFS's no-jeopardy finding provided no reason why the delayed implementation of dozens of RPA measures would nonetheless result in no jeopardy. In fact, NMFS stated exactly the opposite, that hydropower measures alone would not avoid jeopardy, yet it allowed the FCRPS to continue operating without other mitigation measures in place. (375) Indeed, the flycatcher case actually contains language that supports the environmentalists' case. The court stated that FWS appropriately altered the draft BiOp when it became clear that the Bureau did not have the authority or jurisdiction to maintain Lake Mead at low water levels. (376) In contrast, in the 2000 BiOp, NMFS relied on some RPA measures over which none of the action agencies had jurisdiction or authority. (377) Therefore, under the flycatcher case, NMFS's 2000 BiOp and RPA are probably illegal. D. The Emergency Exemption NMFS's inclusion of an exemption within the RPA also likely violated the ESA. NMFS allowed the action agencies to spill water to generate power in the winter due to a financial emergency when the BiOp required the water to be stored for fish migration in the spring and summer. (378) Because NMFS failed to provide a clear analysis, or indeed any analysis, of the effects of the exemption on the likelihood of the RPA to avoid jeopardy, NMFS's emergency exemption appeared to be arbitrary and capricious. (379) Although NMFS must design RPAs that are economically and technologically feasible, (380) nothing in the ESA or its implementing regulations authorize NMFS to include in RPAs complete exemptions from performing actions that NMFS acknowledges are critical to the success of the RPA, and thus critical to its no-jeopardy determination. Therefore, NWF may prevail in its challenge of the emergency exemption. 1. Invoking the Exemption As early as the summer of 2000, Californians experienced short-term, rolling power blackouts due to power shortages and transmission problems. (381) California had recently approved deregulation of parts of the energy industry within the state, but maintained tight consumer price controls over other parts of the industry. (382) The state also required power retailers to buy power on the "spot" market, rather than negotiating long-term, forward-looking contracts. (383) Low demand and high prices increased energy retailers' costs, but some retailers could not pass those costs on to consumers. (384) For awhile, San Diego Gas & Electric, the only major retailer authorized to pass its costs on to customers, did so, and some southern Californians were suddenly paying some of the highest electric costs in the country. (385) Despite the reimposition of a retail price-cap on the San Diego utility, and the loosening of price caps for those retailers unable to pass on their full costs, (386) the electricity crisis worsened. Ultimately, by the spring of 2001, one major retailer had gone bankrupt, and California's energy situation was in shambles. (387) At the same time, the Pacific Northwest was heading into a drought. (388) The Pacific Northwest derives most of its power from hydropower, and the bulk of that hydropower is generated along the Columbia River and administered by BPA. (389) Under the Northwest Power Act, BPA must sell its power to public utilities at wholesale rates, (390) and it must give preference to customers in the Pacific Northwest before selling surplus power to other regions. (391) BPA may also contract to sell power to other customers, as long as it recovers the agency's costs. (392) As electric supplies began to dry up, BPA found itself paying as much as $50 million per week to purchase power on the spot market to fulfill its power supply contracts. (393) Rather than pass its increased costs on to its customers, BPA decided to invoke the BiOp's emergency exemption, claiming that price increases threatened the power system's reliability. (394) BPA failed to consider any options that would have avoided placing the entire burden of the so-called emergency on Columbia Basin salmon. (395) 2. Failing to Fully Analyze the Effects of the Exemption Although NMFS included the emergency exemption in two parts of the RPA, (396) NMFS never explained how the exemption fit with its conclusion that the RPA measures would help avoid jeopardy. Quite possibly, the exemptions would have gone unnoticed, in light of the other questionable provisions within the RPA, had they never been invoked. But, they were used several times in early 2001; as a result, many of the critical requirements of the RPA went unmet for several months. (397) The unbounded scope of the exemption and the extent to which the action agencies excused themselves from implementing the RPA indicate that the RPA included a gaping hole, the extent of which was never identified or discussed. By never expressly discussing the exemption, NMFS failed to analyze how the RPA would actually result in a no jeopardy outcome. Indeed, such a lack of analysis is precisely what Judge Zilly found illegal in Greenpeace v. National Marine Fisheries Service. (398) In Greenpeace, NMFS produced a biological opinion for various fisheries conducted in critical habitat of the Steller sea lion, a species listed as endangered. (399) After concluding that the fisheries would jeopardize the Steller sea lion, NMFS adopted an RPA, a key provision of which was temporal dispersion of the various fisheries within the sea lion's critical habitat. (400) Despite the importance of the temporal dispersion, NMFS's final BiOp allowed nearly the same amount of fish, if not more, to be taken during the same period. (401) Although the court acknowledged that other concerns could have justified this outcome, Judge Zilly nonetheless determined that NMFS's failure to explain precisely how the individual temporal dispersion measures avoided jeopardy, or how the various individual measures worked together to avoid jeopardy violated the ESA. (402) Further, the court stated that NMFS had ignored its own policies, which require the agency to include a "thorough explanation of how each component of the alternative is essential to avoid jeopardy and/or adverse modification" when it develops an RPA consisting of several measures. (403) The court therefore concluded that, while the Steller sea lion RPA might actually achieve its purpose of avoiding jeopardy, NMFS had not provided any analysis to justify such a conclusion. (404) NMFS seemed to commit the same errors in its 2000 BiOp as it did in the Steller sea lion BiOp. Nowhere in the 2000 BiOp did the agency include a description or explanation of how each RPA measure will avoid jeopardy. Even if NMFS need not describe exactly how each RPA measure is critical, under NMFS's own policies and the reasoning of Greenpeace, NMFS had to at least explain why the RPA's reservoir storage and spill requirements were not necessary to avoid jeopardy during power emergencies, particularly since they comprise some of the only requirements that the action agencies were required to implement immediately and most of the few substantive hydropower-related measures contained in the RPA. (405) Therefore, a court is likely to conclude that NMFS's failure to provide a rational explanation for the extensive exemptions violates the ESA. (406) 3. Violating the ESA Even if NMFS had provided some type of analysis for the emergency exemption, it nonetheless appears that the exemption itself violates the ESA. The ESA's primary goal is to protect endangered and threatened species and provide safeguards to facilitate their recovery. (407) The Supreme Court once described the ESA as establishing absolute requirements regardless of the cost, (408) but in practice, NMFS has often allowed economic and technical considerations to factor into developing mechanisms to protect and restore salmon. (409) Indeed, the regulations governing development of RPAs make clear that RPAs must be both technologically and economically feasible. (410) Although NMFS might attempt to suggest that these regulations justify its inclusion of a nearly unlimited exemption, neither the statute nor the regulations envision authorizing action agencies to unilaterally exempt themselves from performing the precise measures the RPA determined were necessary to avoid jeopardy. The ESA makes clear that action agencies must not conduct activities that will jeopardize the existence of listed species. (411) There is no statutory or regulatory authorization for an RPA to exempt action agencies from this clear prohibition. Instead, the plain language of the ESA describes RPAs as actions that an agency may take without jeopardizing the species. (412) By crafting an RPA from which the action agencies may exempt themselves, NMFS essentially granted the action agencies license to jeopardize the Columbia Basin salmon and steelhead. There is no authority in the ESA or its regulations for such an unbounded, unanalyzed, self-executing exemption. (413) E. Incidental Take Statements NWF argued that NMFS violated the ESA by issuing an incidental take statement and an incidental take permit without considering or analyzing the cumulative effects of the various incidental take permits NMFS has issued for the same species in the Columbia Basin. (414) In its incidental take statement for the 2000 BiOp, NMFS authorized incidental take of as much as eighty-eight percent of all Snake River fall chinook. (415) For other species, the authorization allowed up to nearly half of all juveniles to be taken in 2001. (416) The 2000 BiOp also allowed incidental take of adult salmon as well, including up to twenty-nine percent of adult Snake River fall chinook and twenty-three percent of Snake River steelhead. (417) Perhaps most disturbing is that the BiOp permitted an unquantifiable amount of take of juvenile Snake River sockeye, as long as the allowable amounts for Snake River steelhead and chinook were not exceeded, because sockeye numbers are too low to estimate. (418) The 2000 BiOp therefore allowed significant take of those species jeopardized by Columbia Basin hydroelectric operations, but it never fully quantified the authorized take or considered it in light of other incidental take authorizations. (419) The ESA regulations require NMFS to consider the cumulative effects on the listed species in BiOps. (420) In addition to considering the effects of the proposed action, (421) the agency must also consider all "past and present impacts" of all activities in the area, the anticipated impacts of all proposed federal projects that have already undergone ESA consultation, and any future state or private activities reasonably certain to occur. (422) Thus, when issuing an incidental take permit in a BiOp, NMFS must also factor in any other previous or existing incidental take authorizations which have been granted as part of a prior ESA consultation. (423) That is precisely what the District Court of the District of Columbia held. (424) In Defenders of Wildlife v. Babbitt, (425) FWS issued a series of biological opinions, many of which quantified the allowable take, but all of which concluded that the activity was "not likely to jeopardize" the species. (426) The district court determined that the BiOp was deficient because it did not "analyze the effects of the activity in light of the environmental baseline. (427) The court stated that "[s]imply reciting the activities and impacts that constitute the baseline and then separately addressing only the impacts of the particular agency action in isolation is not sufficient." (428) The court ruled that the ESA requires the consulting agency to analyze the effect of the total amount of take authorized, including the amount of take under consideration. (429) Consequently, the court held that "[als incremental incidental takes are authorized, the impact of those takes on the species must be viewed in the context of previously authorized takes and other impacts that are part of the environmental baseline." (430) This type of analysis is precisely what NWF sought in its challenge of the 2000 BiOp, precisely what the ESA requires, and precisely what NMFS failed to do. Under Defenders of Wildlife, NMFS's failure to comply with these requirements seems arbitrary, capricious, and contrary to law. VI. CONCLUSION Over a year has passed since NMFS issued the final 2000 BiOp. In that short time, California's energy crisis has ended, (431) the United States's largest budget surplus in history has all but evaporated, (432) and the status quo continues in the Columbia Basin. (433) Despite promises of immediate actions to improve salmon habitat along the Columbia and Snake Rivers, agencies have failed to perform their obligations under either the 2000 BiOp or the Federal Caucus Plan. (434) Indeed, the status of the BiOp remains in limbo, with the NWF case underway and no quick end in sight. Whatever the outcome of the litigation, it seems unlikely that the 2000 BiOp will achieve restoration of salmon populations, even if the agencies do actually implement its many measures. In many ways, the 2000 BiOp presented a model of an intelligent and effective approach to adaptive management. Recognizing that many factors have contributed to the salmon's perilous status, NMFS and the Federal Caucus appropriately targeted all the conditions that may harm salmon, while performing necessary studies and evaluations to obtain information for better decision making. This is what the Columbia Basin treaty tribes recommended in their own salmon recovery plan. (435) Unfortunately, the agencies failed to require immediate actions to help abate salmon decline and offered few suggestions for long-term actions other than plan development and studies. Unlike the tribal restoration plan, which advocated immediate on-the-ground actions (436) along with implementation of adaptive management principles, (437) the 2000 BiOp eschewed immediate action, particularly controversial actions, in favor of studies and evaluations. The 2000 BiOp thus continued a long tradition of preferring to study the causes of the decline of Columbia Basin salmon, rather than implement substantive measures aimed to reverse it. (438) Although study and evaluation are necessary to fully understand the full causes of and solutions to salmon decline, they do nothing to immediately help the salmon's perilous situation. Instead of accepting the overwhelming science that, indicates that survival of Snake River salmon depends on breaching of the four Lower Snake River dams, (439) NMFS punted. The effect of the delay may be the extinction of several Snake River salmon species within our lifetimes. (440) (1) Pacific Northwest Electric Power Planning and Conservation Act, Pub. L. No. 96-501, 94 Stat. 2697 (1980) (codified as amended at 16 U.S.C. [subsection] 839-839h (2000)), discussed in Michael C. Blumm & Brad L. Johnson, Promising a Process for Parity: The Pacific Northwest Electric Power Planning and Conservation Act and Anadromous Fish Protection, 11 ENVTL. L. 497 (1981). (2) NORTHWEST POWER PLANNING COUNCIL, COLUMBIA RIVER BASIN FISH AND WILDLIFE PROGRAM (1982), discussed in Michael C. Blumm, Implementing the Parity Promise: An Evaluation of the Columbia Basin Fish and Wildlife Program, 14 ENVTL. L. 277 (1984). (3) Treaty Concerning Pacific Salmon, Jan. 28, 1985, U.S.-Can. T.I.A.S. No. 11,091 (entered into force Mar. 18, 1985), discussed in MICHAEL C. BLUMM, SACRIFICING THE SALMON: A LEGAL AND POLICY HISTORY OF THE DECLINE OF COLUMBIA BASIN SALMON ch. 8 (BookWorld Publications, 2002) [hereinafter SACRIFICING THE SALMON] available at www.salmonlaw.net. (4) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000). (5) See Michael C. Blumm & Greg D. Corbin, Salmon and the Endangered Species Act: Lessons from the Columbia Basin, 74 WASH L. REV. 519 (1999); SACRIFICING THE SALMON, supra note 3, ch. 9. (6) NMFS's scientists have recently analyzed population figures for the Columbia Basin salmon and concluded that "the probability [that] many [salmon and steelhead] stocks and ESUs will severely decline or go extinct in both the short and long-term [is] substantial." MICHELLE MCCLURE ET AL., A LARGE-SCALE MULTI-SPECIES RISK ASSESSMENT 2 (forthcoming). Salmon populations have declined significantly over the past century. See First Amended Complaint for Declaratory and Injunctive Relief at 13-17, Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., Civ. No. CV01-00640-KI (D. Or. June 29, 2001). For example, only 567 Snake River fall chinook salmon reached the Lower Granite Dam in 2000, compared to 72,000 fish in the early twentieth century. Id. at 14. Similarly, steelhead numbers declined from a conservative estimate of 20,000 to 55,000 in the 1960s to 8900 fish in 1999. Id. Although 2001 witnessed record numbers of salmon returning to spawn in the Columbia Basin, these high numbers were the result of favorable outmigration conditions (e.g., high river flows) during the salmon migration season approximately four to five years earlier and hospitable ocean conditions. Barry Espenso, Steelhead Counts Climb at Bonneville Dam, COLUMBIA BASIN BULL., July 27, 2001, at http://www.cbbulletin.com. Scientists predict that juveniles spawned from these returning salmon will face considerably greater difficulties from the poor water conditions resulting from the drought in 2000 and 2001. Id. (7) NAT'L MARINE FISHERIES SERV., BIOLOGICAL OPINION, REINITIATION OF CONSULTATION ON OPERATION OF THE FEDERAL COLUMBIA RIVER POWER SYSTEM, INCLUDING THE JUVENILE FISH TRANSPORTATION PROGRAM, AND 19 BUREAU OF RECLAMATION PROJECTS IN THE COLUMBIA BASIN (Dec. 21, 2000) [hereinafter 2000 BIOP]; FEDERAL CAUCUS, CONSERVATION OF COLUMBIA BASIN FISH: FINAL BASINWIDE SALMON RECOVERY STRATEGY (2000) [hereinafter FEDERAL CAUCUS PLAN]. A biological opinion is the mechanism by which NMFS sets forth its determination whether a proposed action is likely to jeopardize a listed species or destroy or adversely modify its designated critical habitat. 16 U.S.C. [section] 1536(b)(3)(A) (2000); 50 C.F.R. [section] 402.14(h)(3) (2001). In making this determination, NMFS must evaluate the "effects of the action" and any "cumulative effects" on the listed species. 50 C.F.R. [section] 402.14(g)(3)-(4) (2001). In particular, NMFS must consider the direct, indirect, interrelated, and interdependent effects of the proposed action; the "environmental baseline," which includes all "past and present impacts of all Federal, State, or private actions and other human activities in the action area;" and any "future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation." Id. [section] 402.02. (8) See, e.g., Endangered and Threatened Species; Endangered Status for Snake River Sockeye Salmon, 56 Fed. Reg. 58,619, 58,622 (Nov. 20, 1991) (ESA listing of Snake River sockeye); Endangered and Threatened Species; Threatened Status for Snake River Spring/Summer Chinook Salmon, Threatened Status for Snake River Fall Chinook Salmon, 57 Fed. Reg. 14,653, 14,660 (Apr. 22, 1992) (ESA listing of Snake River chinook); Endangered and Threatened Species: Listing of Several Evolutionary Significant Units (ESUs) of West Coast Steelhead, 62 Fed. Reg. 43,937, 43,942-42 (Aug. 18, 1997) (ESA listing of Snake River steelhead). (9) Idaho Dep't offish & Game v. Nat'l Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994), discussed in Michael C. Blumm et al., Beyond the Parity Promise: Struggling to Save Columbia Basin Salmon in the Mid-1990s, 27 ENVTL. L. 21, 42-44 (1997) [hereinafter Beyond Parity]. (10) Am. Rivers v. Nat'l Marine Fisheries Serv., No. 96-384-MA (D. Or. Apr. 3, 1997), afl'd, No. 97-36159 (9th Cir. Mar. 8, 1999), discussed in SACRIFICING THE SALMON, supra note 3, at 183-84. (11) See Michael C. Blumm et al., Saving Snake River Water and Salmon Simultaneously: The Biological, Economic, and Legal Case for Breaching the Lower Snake River Dams, Lowering John Day Reservoir, and Restoring Natural River Flows, 28 ENVTL. L. 997, 1012-23 (1998) [hereinafter The Case for Dam Breaching]. (12) See id. at 1023-31; see also SACRIFICING THE SALMON, supra note 3, ch. 13. (13) Jonathan Brinckman, Unreleased Federal Plan Calls for Dam Breaching, OREGONIAN, Nov. 18, 2000, at A1. (14) 2000 BIOP, supra note 7, at 9-44. (15) Jim Camden, Bush Steps into Breach: Candidate Goes Straight to Dam Issue During Spokane Visit, SPOKESMAN REV., Sept. 26, 2000, at A1. (16) Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., CV01-00640-KI (D. Or. filed June 29, 2001). (17) 2000 BIOP, supra note 7, at 9-2; see discussion indfra Part III. C. (18) 2000 BIOP, supra note 7, at 9-2. (19) FEDERAL CAUCUS PLAN, supra note 7, at 7-8; see discussion infra Part IV. (20) 2000 BIOP, supra note 7, at 9-2. (21) See discussion infra notes 336-56 and accompanying text. (22) See infra notes 50-51, 435-37 and accompanying text. (23) Endangered Species Act of 1973, 16 U.S.C. [section] 1536(a)(2) (2000). Endangered species are defined as those that are at risk of extinction through all or a substantial portion of their range. Id. [section] 1532(6). Threatened species are those that are likely to become endangered in the foreseeable future. Id. [section] 1532(20). (24) Id. [section] 1536(a)(2); 50 C.F.R. [section] 402.14(a) (2000). FWS has lead responsibility for the vast majority of listed species, but NMFS is responsible for marine species, including anadromous fish. See Reorganization Plan No. 4 of 1970, 35 Fed. Reg. 15,627 (July 9, 1970) (establishing the National Oceanic and Atmospheric Administration within the Department of Commerce). For a more in-depth discussion of agencies' responsibilities under the ESA, see Holly Doremus, Water, Population Growth, and Endangered Species in the West, 72 U. COLO. L. REV. 361,378-98 (2001). (25) 16 U.S.C. [section] 1536(b)(3)(A) (2000); 50 C.F.R. [section] 402.14(g)(4) (2001). An action is likely to jeopardize the continued existence of a listed species if it "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. [section] 402.02 (2001). Destruction or adverse modification of critical habitat means "direct or indirect alteration that appreciably diminishes the value" of the habitat. Id. (26) 50 C.F.R. [section] 402.12(d) (2001). (27) Id. [section] 402.14(h)(3); 16 U.S.C. [section] 1536(b)(3)(A) (2000). (28) Bennett v. Spear, 520 U.S. 154, 169-70 (1997) "The action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril." Id. at 170. (29) Blumm & Corbin, supra note 5, at 548-49. (30) 16 U.S.C. [section] 1538(a)(1)(B) (2000). "'[T]ake means W harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. [section] 1532(19). "Harm" includes significant habitat modification or degradation that actually kills or injures listed wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. 50 C.F.R. [section] 17.3 (2001). The expansive definition of harm has meant that agencies can be liable for actions that affect endangered species indirectly through habitat modification. Babbitt v. Sweet Home Ch. of Cmtys. for a Great Or., 515 U.S. 687 (1995). To prove that an agency action has taken a listed animal, however, many courts have required plaintiffs to prove that the action has actually killed or injured the species. See, e.g., Defenders of Wildlife v. Bernal, 204 F.3d 920, 925 (9th Cir. 2000) (holding that to prove the proposed school construction would cause a "take" of the pygmy-owl, Defenders must prove by a preponderance of the evidence that the construction would kill or injure a pygmy-owl). (31) 16 U.S.C. [section] 1536(b)(4) (2000); 50 C.F.R. [section] 402.14(h) (2001). (32) 16 U.S.C. [section] 1536(b)(4) (2000). (33) Ramsey v. Kantor, 96 F.3d 434, 434 (9th Cir. 1996); see also Doremus, supra note 24, at 394-95. (34) See 16 U.S.C. [section] 1539(a)(2)(A) (2000). An HCP must detail the impact of the taking, the steps the applicant will take to avoid the take, a description of how the applicant will fund the steps, a range of alternative actions with reasons for why they were rejected, and any other measures the consulting agency may require. Id. (35) Id. [section] 1539(a)(2)(B). The specific findings the agency must make to issue an Incidental Take Permit are that the taking is incidental to an otherwise lawful activity; the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the taking; adequate funding for the HCP is available; and the taking will not "appreciably reduce the likelihood of the survival and recovery of the species in the wild[.]" Id. (36) Id. [section] 1536(b)(4). (37) NAT'L MARINE FISHERIES SERV., BIOLOGICAL OPINION ON REINITIATION OF CONSULTATION ON 1994-1998 OPERATION OF THE FEDERAL COLUMBIA RIVER POWER SYSTEM AND JUVENILE TRANSPORTATION PROGRAM IN 1995 AND FUTURE YEARS (1995) [hereinafter 1995 BIOP]. (38) These three stocks, or "evolutionarily significant units" (ESUs), are Snake River sockeye, 50 C.F.R. [section] 224.101(a) (2001), Snake River spring/summer chinook, and Snake River fall chinook, 50 C.F.R. [section] 223.102(a)(1)-(2) (2001) (final listing). (39) The nine stocks listed since 1995 are Snake River Basin steelhead, 50 C.F.R. [section] 223.102(a)(7) (2001), Lower Columbia River steelhead, 50 C.F.R. [section] 223.102(8) (2001), Oregon Coast coho salmon, 50 C.F.R. [section] 223.102(a)(10) (2001), Lower Columbia River chinook salmon, 50 C.F.R. [section] 223.102(a)(17) (2001), Upper Willamette River chinook salmon, 50 C.F.R. [section] 223.102(a)(18) (2001), Columbia River chum salmon, 50 C.F.R. [section] 223.102(a)(13) (2001), Upper Willamette River steelhead, 50 C.F.R. [section] 223.102(a)(14) (2001), Middle Columbia River steelhead, 50 C.F.R. [section] 223.102(a)(15) (2001), and Ozette Lake sockeye salmon, 50 C.F.R. [section] 223.102(a)(19). (40) Save Our Wild Salmon Coalition, Five Years of Failure: A Critique of the Clinton Administration's Plan for Columbia and Snake River Salmon, in COMPETING FOR THE MIGHTY COLUMBIA RIVER--PAST, PRESENT, AND FUTURE: THE ROLE OF INTERSTATE ALLOCATION (Apr. 30-May 1, 1998) (course materials for an ABA Section of Natural Resources, Energy, and Environmental Law conference in Boise, ID); see also The Case for Dam Breaching, supra note 11, at 1019-20 (noting that the status quo is not a viable option). (41) See The Case for Dam Breaching, supra note 11, at 1003 n.19, 1012-23. (42) Id. at 1003 n.19, (citing Michael C. Blmum & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 ENVTL. L. 657, 725-26 (1991)). (43) Id. at 1012-23. (44) COLUMBIA BASIN INDIAN TRIBES AND STATE & FEDERAL FISH & WILDLIFE AGENCIES, DETAILED FISHERY OPERATING PLAN WITH 1994 OPERATING CRITERIA 2-8, 20-24 (1993). (45) Id. at 4, 6-8. "Minimum operating pool" is the "lowest water level of an impoundment at which navigation locks can still operate," which is higher than a drawdown to spillway crest. NORTHWEST POWER PLANNING COUNCIL, COLUMBIA RIVER BASIN FISH AND WILDLIFE PROGRAM G-9 (1994) [hereinafter NPPC 1994 PROGRAM]. (46) PHILLIP R. MUNDY ET AL., TRANSPORTATION OF JUVENILE SALMONIDS FROM HYDROELECTRIC PROJECTS IN THE COLUMBIA RIVER BASIN: AN INDEPENDENT PEER REVIEW, FINAL REPORT (1994). (47) Id. at 89. (48) NPPC 1994 PROGRAM, supra note 45, at 5-32, 5-46. (49) NAT'L RESEARCH COUNCIL, UPSTREAM: SALMON AND SOCIETY IN THE PACIFIC NORTHWEST 241, 4 (1996); see The Case for Dam Breaching, supra note 11, at 1015 n.104 (calling into question the National Research Council's endorsement of short-term transportation). (50) B0 WY-KAN-USH-MI WA-KISH-WlT (THE SPIRIT OF THE SALMON), THE COLUMBIA RIVER ANADROMOUS FISH RESTORATION PLAN OF THE NEZ PERCE, UMATILLA, WARM SPRINGS AND YAKAMA TRIBES 5B-27, 5B-29, 5B-30 to 5B-31 (1996) [hereinafter TRIBAL RESTORATION PLAN]. (51) Id. For a discussion of the tribal plan, see Melissa Powers, The Spirit of the Salmon, How the Tribal Restoration Plan Could Restore Columbia Basin Salmon, 30 ENVTL. L. 867 (2000). (52) INDEPENDENT SCIENTIFIC GROUP, RETURN TO THE RIVER: RESTORATION OF SALMONID FISHES IN THE COLUMBIA RIVER ECOSYSTEM xvii, 5, 19 (1996) [hereinafter RETURN TO THE RIVER], Executive Summary summarized in Independent Scientific Group, Return to the River: An Ecological Vision for the Recovery of the Columbia River Salmon, 28 ENVTL. L. 503 (1998); IDAHO DEP'T OF FISH & GAME, REPORT TO THE DIRECTOR, IDAHO'S ANADROMOUS FISH STOCKS: THEIR STATUS AND RECOVERY OPTIONS 12, 13-14 (1998). The Independent Scientific Group was established by the Northwest Power Planning Council. RETURN TO THE RIVER, supra at xiv. The group coined the term "normative river conditions," which the Idaho Department of Fish & Game then embraced. The Case for Dam Breaching, supra note 11, at 1017, 1019-20. (53) PLAN FOR ANALYZING AND TESTING HYPOTHESES (PATH), PATH FINAL REPORT FOR FISCAL YEAR 1998 at 8 (D.R. Marmorek et al. eds., 1998). A report from a "weight of the evidence" workshop, in which scientists attempted to scientifically evaluate competing theories and models also concluded that barging all possible fish would actually lower Snake River salmon's chance of recovery by 35%. The Case for Dam Breaching, supra note 11, at 1022, (citing Conclusions and Recommendations from the PATH Weight of Evidence Workshop, Sept. 8-10, 1998, at 18-19 (unpublished report, on file with authors)). (54) Economic studies also showed that dam modification is not only economically viable, but beneficial for the Pacific Northwest. See The Case for Dam Breaching, supra note 11, at 1023-31. (55) Dan Hansen, Breaching Hearings Draw 9,000: Nearly 30,000 Submit Opinions on What Should Happen to Snake River Dams, SPOKESMAN REV., Mar. 17, 2000, at B1. (56) Patrick McMahon, Oregon Governor Backs Plan to Save Salmon, USA TODAY, Feb. 21, 2000, at 13A. (57) Hannelore Sudermann, East Side Leaders ReJect Dams Vote: Whitman, Colfax Officials Voice Opposition to Seattle City Council's Breaching Resolution, SPOKESMAN REV., Aug. 30, 2000, at B1. (58) See Brent Hunsberger, Scientists. Send Letter Asklng Clinton to Breach Lower Snake River Dams, OREGONIAN, Dec. 19, 2000, at D5. (59) The BiOp examined the effects of fourteen sets of dams, powerhouses, and associated reservoirs that fall within the FCRPS. 2000 BIOP, supra note 7, at 1-3. The Army Corps of Engineers has primary responsibility for operation and management of the dams operated primarily for hydroelectric production and flood control, particularly the dams in the Lower Snake River Basin and the mainstem of the Columbia River. Id. These dams include Dworshak, Lower Granite, Little Goose, Lower Monumental, and Ice Harbor dams in the Lower Snake River and McNary, John Day, The Dalles, and Bonneville dams in the lower Columbia River. Id. The Bureau of Reclamation has operational control over projects developed primarily for irrigation. Id. at 1-1. For a history of dam construction in the Columbia Basin and the roles played by the Corps and Bureau of Reclamation, see MARC REISNER, CADILLAC DESERT 171-72 (1986). The Bonneville Power Administration (BPA) also influences dam operations through its marketing of electricity produced by the dams. BONNEVILLE POWER ADMIN. ET AL., THE COLUMBIA RIVER SYSTEM: THE INSIDE STORY 18 (1991). (6O) The Army Corps of Engineers first began transporting smolts in the Columbia Basin in the late 1960s and early 1970s to mitigate the direct and indirect salmon mortality caused by passage through the dams. In 1981, the Corps began transporting all the smolts collected at Snake River dams. PHILIP R. MUNDY ET AL., TRANSPORTATION OF JUVENILE SALMONIDS FROM HYDROELECTRIC PROJECTS IN THE COLUMBIA RIVER BASIN: AN INDEPENDENT PEER REVIEW 14 (May 1994). Today, the Corps transports between fifteen and twenty million juvenile salmon downstream each year. JOSEPH E. TAYLOR III, MAKING SALMON: AN ENVIRONMENTAL HISTORY OF THE NORTHWEST FISHERIES CRISIS 245 (1999). For a critique of the transportation program, see The Case for Dam Breaching, supra note 11, at 1051. (61) See, e.g., The Case for Dam Breaching, supra note 11, at 1013-23 (discussing several scientific studies critical of transportation). (62) See infra notes 143, 394-95, 397 and accompanying text (describing BPA's use of the emergency exemption). (63) 2000 BIOP, supra note 7, at 1-8. (64) The environmental baseline includes [all] past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. 50 C.F.R. [section] 402.02 (2001). (65) 2000 BIOP, supra note 7, at 1-8. (66) Id. at 1-12. (67) Id. at 1-13. NMFS also assessed survival based on a 24 year period. Id. (68) Id. (69) Id. (70) Endangered Species Act of 1973, 16 U.S.C. [section] 1536(a)(2) (2000). (71) 2000 BIOP, supra note 7, at 8-9, 8-12, 8-19, 8-21, 8-23 (no effect of the transportation program on five lower river salmon species); 8-4, 8-6, 8-8, 8-14, 8-16 (no jeopardy from the transportation program on seven upriver salmon species); 8-9, 8-11, 8-19, 8-21 (no jeopardy from dam operations on Upper Willamette River chinook, Lower Columbia River chinook, Upper Willamette River steelhead, and Lower Columbia River steelhead). (72) Id. at 8-3, 8-5, 8-7, 8-13, 8-15, 8-17, 8-23, 8-25 (jeopardy from dam operations to Snake River spring/summer chinook, Snake River fall chinook, Upper Columbia River spring chinook, Snake River steelhead, Upper Columbia River steelhead, Middle Columbia River steelhead, Columbia River chum, and Snake River sockeye). (73) See 16 U.S.C. [section] 1536(b)(3)(A) (2000) ("If jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [the jeopardy standard]."). (74) See, e.g., Beyond Parity, supra note 9, at 65-66 (discussing river flows under the 1995-1999 BiOp on Columbia Basin dam operations). (75) For example, the RPA changed prescribed spill levels from 80% to 60,000 cfs. 2000 BIOP, supra note 7, at 9-88 to 9-89. (76) See, e.g., Kai N. Lee & Jody Lawrence, Adaptive Management: Learning from the Columbia River Basin Fish and Wildlife Programs, 16 ENVTL. L 431 (1986) (discussing adaptive management as a policy framework in the Columbia River Basin). (77) One court struck down an attempt by NMFS to reject listing Oregon coho salmon under the ESA because the state program on which NMFS relied contained largely speculative and voluntary promises of future meausures. Or. Nat. Res. Council v. Daley, 6 F. Supp. 2d 1139, 1152-55 (D. or. 1998); see Christine Golightly, The Oregon Coastal Salmon Restoration Initiative: A Flawed Attempt to Avoid an ESA Listing, 7 N.Y.U. J. ENVTL. L. 398 (199);SACRIFICING THE SALMON, supra note 3, at 313-14. (78) 2000 BIOP, supra note 7, at 9-2. (79) Id. at 9-2 to 9-3. (80) See, e.g., id. at 9-94 to 9-104. Of 37 studies recommended in the section of the 2000 BIOP addressing juvenile fish passage, only seven had any specific commencement dates, and even fewer had required completion dates. Id. For example, at The Dalles Dam, the 2000 BIOP required the Corps to complete research of spill and passage sometime between 2002 and 2005. Id. at 9-96. (81) Id. at 9-1. (82) Id. at 9-7. While the 2000 BIOP included these standards, it did not indicate what level of implementation should be considered a success or failure. Thus, it was unclear what NMFS will do in a situation in which an agency refuses to implement requirements of the 2000 BIOP for political or economic reasons. Id. (83) Id. at 9-17. (84) Id. at 9-17 to 9-18. (85) Id. at 9-8. (86) Id. at 9-10. (87) Id. at 9-8. (88) Id. Lambda is only one way to estimate population productivity. Other estimates may be derived from estimates of the number of recruits per sponsor or smolt-to-adult returns. Id. NMFS promised to develop other measures of population status by 2003. Id. at 9-8 to 9-9. (89) See id. at 9-9 (stating that a lambda value of 1.1 or greater is favorable enough to continue implementation without further review). (90) Id. (91) Id. at 9-9. (92) Id. at 9-10 to 9-11. The first three parts of the test concern annual population growth (lambda): 1) whether lambda is greater in 2005 and 2008 than today, 2) whether lambda is greater than the projected growth rate expected to result from implementation of a 1995 Biological Opinion, harvest limitations, and a Columbia Basin Habitat Conservation Project, and 3) whether lambda is sufficient to produce a high likelihood of achieving recovery of the listed species. Id. at 9-10. The fourth part of the test concerns population abundance and compares annual adult returns of wild salmon against a five-year mean as of the date of the 2000 BIOP. Id. The RPA classified the latter test as a safety-net test; two consecutive years below the average mean will trigger concern, additional review, and possibly other action. Id. However, this safetynet does not apply to Snake River sockeye, whose members are too depleted for quantitative analysis. Id. at 9-11. (93) Id. at 9-11 to 9-14. (94) Id. at 9-14 to 9-15. (95) See id. at 9-15 (stating that the purpose of the progress checks is to determine whether the implemented actions are having the expected effect). (96) Id. at 3-1. The operating agencies proposed to continue operations consistent with the 1995 BiOp but added performance standards. Id. (97) Id. at 9-56 tbl.9.6-1; c.f. the operating agencies' proposal, id. at 3-1. Snake River spring flow objectives apply from April 3 to June 20; summer objectives apply between June 21 and August 31. Id. at 9-56 tbl.9.6-1. (98) Id. at 9-56 tbl.9.6-1; c.f the operating agencies' proposal, id. at 3-1. Spring objectives applies to the Lower Columbia between April 20 and June 30; summer objectives apply from July 1 to August 31. Id. at 9-56 tbl.9.6-1. Winter objectives apply to the Columbia at Bonneville Dam from November 1 until the emergence of chum smolts, usually in April. Id. at 9-5. (99) Id. at 9-56 tbl.9.6-1. (100) Id. at 9-57 to 9-58. The RPA established specific operational requirements at Lower Granite, McNary, and Priest Rapids Dams. Id. It also directed the operating agencies to manage available water to support mainstem flows and spills and to conduct fall and winter operations in a manner that "achieves refill to April 10 flood control elevations, while meeting ... minimum flow and flood control constraints before April 10." Id. at 9-60 to 9-61. The RPA also specified reservoir levels and drafts for Hungry Home, Libby, Albeni Falls, and Grand Coulee Dams. Id. at 9-61 to 9-64. (101) Id. at 9-55. (102) Id. at 9-55 to 9-56. (103) Id. at 9-60. (lO4) Id. at 9-62. (105) Id. at 9-68. (106) Id. at 9-68 to 9-71. The RPA also instructed the Bureau to study drafting Banks Lake down 10 feet. Id. at 9-70. On the problem of water spreading, see Nathan Baker, Comment, Water, Water, Everywhere, and at Last a Drop for Salmon? NRDC v. Houston Heralds New Prospects Under Section 7 of the Endangered Species Act, 29 ENVTL. L. 607, 621-22 (1999) and Reed D. Benson & Kimberly J. Priestly, Making a Wrong Thing Right: Ending the "Spread" of Reclamation Project Water, 9 J. ENVTL. L. & LITIG. 89 (1994). For a discussion of how the ESA can be used to limit water spreading, see Peter M. Lacy, The Irrigated Desert and Imperiled Salmon: "Reclaiming" Illegally Spread Water Via the Endangered Species Act, 4 U. DEN. WATER L. REV. 351 (2001). (107) 2000 BIOP, supra note 7, at 9-74 to 9-75. (108) Id. at 9-71 to 9-72. (109) Id. at 9-73 to 9-74. (110) Id. at 9-119. (111) Id. (112) Id. at 9-121. Critical habitat is defined in the Endangered Species Act as habitat essential for conservation of a threatened or endangered species. It includes areas occupied by the species that have "physical or biological features (i) essential to the conservation of the species and (ii) which may require special considerations or protection." Endangered Species Act of 1973, 16 U.S.C. [section] 1532(5)(a)(i) (2000). It also includes areas not currently occupied by the species that "are essential for the conservation of the species." Id. [section] 1532(5)(a)(ii). When NMFS or the Fish and Wildlife Service lists a species as threatened or endangered under the ESA, the Service must, "to the maximum extent prudent and determinable," designate critical habitat at the same time. Id. [section] 1533(a)(3). For a discussion of critical habitat designation, see Jack McDonald, Critical Habitat Designation Under the Endangered Species Act: A Road to Recovery?, 28 ENVTL. L. 671 (1998). (113) 2000 BIOP, supra note 7, at 9-122. (114) Id. at 9-124 to 9-125. (115) Id. at 9-122. (116) Id. at 9-127. It was not clear from the RPA whether the June 2001 deadline applied to developing the plan to create the model or developing the model itself. Id. (117) See supra notes 41-53 and accompanying text (discussing the movement to restore natural river flows and reduce reliance on transportation). (118) 2000 BIOP, supra note 7, at 9-76. (119) Id. (120) The RPA also proscribed transportation of subyearling fall chinook at McNary until inriver conditions "deteriorate" (i.e., are no longer "spring-like," defined as river flows at or above the spring flow targets of 220 to 260 kcfs and ambient water temperatures below 62[degree]F). Id. at 9-77. (121) Id. at 3-6. (122) Id. at 9-77. (123) Id. at 9-78 to 9-80. The studies will assess inriver return ratios, delayed mortality, effects of transportation on adult homing, and post-release survival. Id. (124) Id. at 9-80. (125) Id. at 9-88, see id. at 9-89 tbl.9.6-3 (summarizing the spill targets at eight mainstem dams). (126) Id. at 9-88 to 9-89. (127) Id. at 9-89. (128) See id. at 9-89 to 9-90 (discussing adjustments made at Little Goose and Lower Monumental Dams). (129) Id. at 9-90 to 9-91. The RPA made no changes to spill at Bonneville Dam and reduced spill at The Dalles Dam due to studies which questioned the survival benefits of high spill levels at that dam. Id. at 9-91 to 9-92. The results of these studies, which concluded that lower spill levels achieved the same survival rates as high spill levels, even though more fish passed through the dam's turbines and sluiceway, call into question the underlying assumption in the 2000 BIOP that maximum spill levels will achieve the expected survival benefits. Id. at 9-91. NMFS, however, did not address the significance of The Dalles Dam studies as they relate to other dams. (130) Id. at 9-92. The prescribed improvements consisted of a new Schultz-Hanford 500 kilovolt transmission line (to improve transmission efficiency to and from California), continued efforts to upgrade the west-of-Hatwal cutplane (to improve transmission efficiency to and from Montana), and investigations of other developments, such as a new 500 kilovolt line and gaspowered combustion turbines to enhance spill capability. Id. at 9-92 to 9-93. (131) Id. at 9-65. (132) Id. (133) Id. (134) See id. at 3-6. The RPA did extend the period for John Day Minimum Operating Pool level to April 10 from April 20. (135) Id. at 9-93 to 9-94. (136) Id. at 9-110 to 9-118. (137) Id. at 9-106 to 9-109. (138) See id. at 3-6 (power turbine efficiency), 3-7 to 3-8 (predator control), 3-7 (adult passage). (139) Id. at 9-62, 9-88. (140) Id. at 9-62. (141) Id. (142) Id. The 2000 BIOP simply recommends that "regional executives" should be involved in discussions regarding emergencies of "exceptional magnitude or duration." Id. (143) See infra notes 394-95, 397 and accompanying text (discussing the BPA's decision to invoke the BiOps emergency exception rather than pass on increased power costs to customers). (144) Id. at 9-1 to 9-2. (145) Endangered Species Act of 1973, 16 U.S.C. [section] 1536(b)(4)(C)(iv) (2000) (setting forth the authority of consulting agencies to establish "terms and conditions ... that must be complied with by the Federal agency or applicant ... to implement the measures specified [as a reasonable and prudent alternative to avoid species jeopardy]"). (146) See discussion infra Part IV (discussing the Basinwide Salmon Recovery Strategy). (147) 2000 BIOP, supra note 7, at 9-133. (148) See discussion infra notes 336-56 and accompanying text (discussing the role of non-action agencies in implementing the BiOp). (149) 2000 BIOP, supra note 7, at 9-133. (150) Id. During the first year, the priority subbasins are the Lemhi (Idaho), Upper John Day (Oregon), and Methow (Washington) subbasins. Id. at 9-134. The Bureau is to coordinate its actions with NMFS, the U.S. Fish and Wildlife Service, states, and unidentified entities. Id. at 9-133. (151) Id. at 9-134. These actions may include acquiring conservation easements and fee titles. Id. (152) Id. at 9-136 to 9-137 (noting that successful restoration and protection of habitat will often require involvement of state, local, and tribal governments). (153) Id. at 9-135. (154) Id. at 9-137. (155) In many cases, the RPA did not even identify the other entities. For example, in developing its subbasin plans, the Bureau of Reclamation must coordinate with, inter alia, unidentified others entities. See supra note 150. (156) 2000 BIOP, supra note 7, at 9-139. The plan is to set salmon conservation goals, identify habitats that can support salmon production (including flow requirements), establish performance standards, and develop a research, monitoring, and evaluation program. Id. (157) Id. at 9-139 to 9-141. The plan's goal over 10 years is to protect and restore 10,000 acres of tidal wetlands and other key habitats through acquisition of lands, breaching of levees, creation of wetlands, and other habitat improvements. Id. at 9-139 to 9-140. The state plan is the Lower Conservation River Estuary Plan, developed by Oregon and Washington. Id. at 9-138 to 9-139. State approval is not required for measures under the RPA plan, however. Id. at 9-139. (158) As explained below, neither the 2000 BIOP nor the Federal Caucus Plan ever specified what role tribes would have in the offsite mitigation actions. See infra note 253 and accompanying text. (159) See THE NORTHWEST SALMON CRISIS: A DOCUMENTARY HISTORY 105, 120-21 (Joseph Cone & Sandy Ridlington eds., 1996) (discussing negative results of production and introduction of hatchery fish); SACRIFICING THE SALMON, supra note 3, ch. 6. (160) The ESA protects "distinct population segments" as species. Endangered Species Act of 1973, 16 U.S.C. [section] 1532(16) (2000). In the case of Pacific salmon, NMFS developed the concept of evolutionarily significant units (ESUs) to define population segments eligible for protection. Policy on Applying the Definition of Species under the Endangered Species Act to Pacific Salmon, 56 Fed Reg. 58,612, 58,618 (Nov. 20, 1991). The ESU concept emphasizes reproductive and genetic isolation of the species to the exclusion of other policies like promoting ecosystem health, conserving imperiled domestic populations even where a species is relatively abundant elsewhere in the world, and providing management flexibility in the face of scientific uncertainty. See Daniel J. Rohlf, There's Something Fishy Going on Here: A Critique of the National Marine Fisheries Service's Definition of Species Under the Endangered Species Act, 24 ENVTL. L. 617 (1994). In September 2001, federal District Judge Michael Hogan struck down NMFS's listing of Oregon coho because, although NMFS included both hatchery and wild fish in its Oregon coho ESU, it limited its management prescriptions to wild salmon. Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D. Or. 2001). While the Ninth Circuit has stayed the decision pending an appeal, the decision could have significant effects on the status of all listed salmon. See Earthjustice Legal Defense Fund, Oregon Coast Coho Again Protected, at http://www.earthjustice.org/news/ (last visited Jan. 30, 2002). Since most ESUs include both hatchery and wild salmon, the decision cast a pall over the future role of the ESA in salmon restoration efforts. Indeed, within weeks irrigators used Judge Hogan's decision to file delisting petitions for numerous other salmon ESUs. However, the pall could readily be lifted ff NMFS would eliminate the ESU concept or redefine it to emphasize ecological significance instead of reproductive and genetic isolation. See Daniel J. Rohff, The Hogan Decision: Clarification of Salmon Protection Needed from Feds, RESTORATION (Issue 28 at 1, Or. Sea Grant, 2002). (161) 2000 BIOP, supra note 7, at 9-146. (162) Id. The Pacific Salmon Commission implements the U.S.-Canada Pacific Salmon Treaty of 1985, T.I.A.S. No. 11,091. See Thomas C. Jenson, The United States-Canada Pacific Salmon Interception Treaty: An Historical and Legal Overview, 16 ENVTL. L. 363 (1986); SACRIFICING THE SALMON, supra note 3, ch. 8. The Pacific Fishery Management Council controls harvests in federal waters off the coasts of California, Oregon, and Washington under the Magnuson and Stevens Fishery Conservation and Management Act, 16 U.S.C. [section] 1852 (a)(6) (2000). (163) See SACRIFICING THE SALMON, supra note 3, at 112-15 (discussing early efforts to create the impression that hydropower and hatcheries could coexist). (164) 2000 BIOP, supra note 7, at 9-154 to 9-156. (165) Id at 9-154 to 9-156. The reforms include measures to 1) clarify the goals, objectives, and performance criteria of hatchery programs, 2) reduce genetic risk to listed species by discontinuing interbasin transfers and producing fish from locally adapted stocks, 3) minimize competition and predation between hatchery and natural fish, 4) desigh facilities so they more closely mimic natural conditions, and 5) mark and monitor hatchery fish. Id. (166) Id. at 9-157 to 9-160. The RPA called for implementation of "safety-net" projects or as soon as possible for the following populations: 1) A-run steelhead in the Lemhi River, main Salmon River tributaries, East Fork Salmon River, and Lower Salmon River, 2) B-run steelhead in the upper Lochsa River and South Fork Salmon River, and 3) spring/summer chinook in the Lemhi, East Fork, Yankee Fork Salmon Rivers, and Valley Creek. Id. at 9-159 (167) Id. at 9-156 to 9-157 (168) Id. (169) Id. at 9-157. The RPA did not identify which species are most at risk. (170) Id. at 9-26. (171)Id. at 9-26 to 9-27. (172)Id. at 9-27. The RPA stated that membership on the Implementation Team "is open to senior program and policy level personnel from the states, Tribes, and Federal agencies." Id. Membership on "teams and subgroups operating under the Implementation Team's guidance" is open to federal, state, and tribal representatives with technical expertise related to hydroelectric operations, fish and wildlife, and water quality. The RPA also encouraged participation (presumably on the teams and subgroups) of a wide variety of representatives, including those from Alaska, the Northwest Power Planning Council, and public and private utilities. Id. All meetings are professionally facilitated and open to the public, and meeting minutes are available for review from NMFS's Portland office or from its home page, at www.nwr.noaa.gov/hydrop/hydroweb/default.html. (last visited Mar. 16, 2002). (173) 2000 BIOP, supra note 7, at 9-27. (174) Id. at 9-27 to 9-30. (175) Id. at 9-23. (176) Id. at 9-25. (177) Id. at 9-30 to 9-31. (178) Id. (179) Id. at 9-30. The RPA also envisioned the participation of NMFS and the U.S. Fish and Wildlife Service in production planning under United States v. Oregon, 699 F. Supp. 1456 (D. Or.1988). Id. at 9-31. (180) Id. at 9-25. There are also one- and five-year research, monitoring, and evaluation plans aimed at determining population status, understanding the relationship between habitat and population trends, and assessing the effectiveness of management actions. Id. at 9-31. Like the habitat, hatchery, and harvest plans, these plans will be prepared by the federal hydropower operators with assistance of NMFS and the U.S. Fish and Wildlife Service. (181) Id. at 9-34 to 9-35. (182) Id. at 9-35. (183) Id. at 9-37. (184) Id. at 9-41 to 9-42. NMFS also indicated it would evaluate whether federal agencies (other than the federal hydropower operators) participating in the Basinwide Recovery Strategy have obtained necessary funding and authorization, although the RPA was not clear what NMFS would do if they have not. Id. at 9-2. (185) Id. at 9-43. (186) Id. at 9-44. (187) Id. at 9-45. The 2005 evaluation will ask whether the federal hydropower agencies have demonstrated that proposed offsite mitigation can increase life stage survival, and whether their implementation actions demonstrate survival improvements sufficient to avoid jeopardy for all listed populations. Id. One might question why there was no jeopardy in 2000 if a no jeopardy finding in 2005 will require demonstrated survival improvements. (188) Id. at 9-46. (189) Id. (190) Id. at 9-47. (191) Id. at 9-48. (192) Id. (193) See supra notes 89-91 and accompanying text (discussing the draft BiOp and factors considered determinative of success). (194) 2000 BIOP, supra note 7, at 9-50 to 9-51. (195) Id. at 9-2. (196) The Federal Caucus consists of eight federal agencies: the U.S. Army Corps of Engineers, the Bureau of Reclamation, the Bureau of Indian Affairs, the Bureau of Land Management, the Environmental Protection Agency, the U.S. Fish and Wildlife Service, the Forest Service, and the National Marine Fisheries Service. 1 FEDERAL CAUCUS PLAN, supra note 7, at 11. (197) See generally id. at 1-3 (describing role of Federal Caucus). (198) See infra notes 336-56 and accompanying text (discussing authors' conclusions about the success of the BiOp program). (199) While the strategy did not distinguish between goals and objectives, it appears that the goals are a broader category of outcomes that the strategy hopes to achieve, while the objectives are more specific targets that fall within the seven broader goals. See 1 FEDERAL CAUCUS PLAN, supra note 7, at 33-34. (2O0) Id. at 33. (201) Id. (202) See, e.g., the species mentioned supra note 72. (203) See supra notes 181-84, 186-90 and accompanying text. (204) 1 FEDERAL CAUCUS PLAN, supra note 7, at 33. (205) Id. Despite the strategy's repeated reference to "long-term" actions and benefits, the strategy failed to explain what "long-term" means. At one point the strategy described long-term as "at least one hundred years," in reference to an assessment of salmon viability and self-sustaining salmon population. Id. at 22. One would hope that where the strategy referred to long-term actions and outcomes, the Federal Caucus intended to implement them sooner than one hundred years after the strategy's adoption. (206) Id. at 33-34. (207) Id. at 34 ("The actions reflect the best scientific understanding of what is necessary to conserve the species and their ecosystems."); see discussion infra notes 260-66 and accompanying text. (208) Id. at 38. (209) Id. ("If progress towards meeting performance standards is not sufficient, adjustments will be made, either in actions implemented or in the allocation of survival improvements across the Hs."). (210) Id. at 38-39. (211) Id. at 39. (212) Id. at 40. (213) Id. at 41. (214) Id. (215) Id. at 42. (216) Id. at 42-43; see also supra notes 82, 184-85 and accompanying text. (217) 1 FEDERAL CAUCUS PLAN, supra note 7, at 39, 41. (218) Id. at 40 tbl.3. (219) Id. at 48. (220) Id. at 39. (221) Id. There are nine life-history stages for salmon. For example, spawning to emergence is one life stage. Emergence to parr is a second life stage. Tier 2 performance standards measure the success of each H on each life stage of the salmon. Id. 222 Id. (223) Id. at 41. (224) Id. at 39. (225) Id. at 39, 48. (226) Id. at 47. (227) Id. at 48. (228) Id. at 50-51 tbl.5. (229) NMFS expected to complete recovery planning for the Upper Willamette and Lower Columbia ESUs by December 2002, and for the Interior Columbia ESUs by December 2003. 2 FEDERAL CAUCUS PLAN, supra note 7, at 13. (230) 1 FEDERAL CAUCUS PLAN, supra note 7, at 50 tbl.5. (231) Id. (232) See 2 FEDERAL CAUCUS PLAN, supra note 7, at 15 (noting that the Northwest Forest Plan applies to western Oregon and Washington). (233) See id. at 18-19. (234) Id. at 19. (235) Planning for ICBEMP began in 1993; it was scheduled to be implemented in January, 2001. The plan, however, was heavily criticized by loggers, ranchers, and environmentalists, and was essentially abandoned by the Clinton administration in its last days in office. See Katherine Pfieger, Many Fear Columbia Conservation Push Just Muddies Things, SEATTLE TIMES, Jan. 15, 2001, at B1. The Bush administration was not expected to move the process forward. Id. The web page for ICBEMP indicates that those expectations have been met. See Interior Columbia River Basin Ecosystem Management Project, at http:www.icbemp.gov (last visited Mar. 3, 2000) (236) See I FEDERAL CAUCUS PLAN, supra note 7, at 50 tbl.5. (237) Id. (238) See infra notes 241-43 and accompanying text for a description of the states' responsibilities. (239) 1 FEDERAL CAUCUS PLAN, supra note 7, at 51 tbl.5. These three subbasins were defined as "priority subbasins' in the strategy. Id. (240) The strategy also recommended mainstem habitat improvement through such actions as assessing opportunities for mainstem habitat improvements, implementing restoration programs, and protecting the Hanford Reach area. For all salmon habitat, the strategy also recommended implementation of a comprehensive monitoring and evaluation program. Id. (241) "A total maximum daily load is a calculation of the maximum amount of a pollutant that a water body can receive and still meet state water quality standards, and an allocation of that amount to the pollutant's source." Id. at 77. Under the Clean Water Act, states must establish total maximum daily loads (TMDLs) for all water bodies that are designated as "water quality limited." Federal Water Pollution Control Act, 33 U.S.C. [section] 1313(d) (1994). For more on TMDLs, see Oliver A. Houck, TMDLs: The Final Frontier, 29 Envtl. L. Rep. (Envtl. L. Inst.) 10,469 (1999), and earlier articles in the series, Robert W. Adler, New TMDL Litigation Leaves Many Unanswered Questions, 6 RIVERS 269 (1998), and Nina Bell, TMDLs: The Key to Unlocking the Clean Water Act, BiG RIVER NEWS no. 4, at 1 (Nat'l Res. L. Inst., Fall 1999). (242) 1 FEDERAL CAUCUS PLAN, supra note 7, at 51-52 tbl.5. (243) Id. at 52 tbl.5. (244) Id. at 7. (245) Id. at 53. (246) Id. On the Pacific Salmon Treaty Agreement, see SACRIFICING THE SALMON, supra note 3, ch. 8. On United States v. Oregon, 699 F. Supp. 1456 (D. Or. 1988), and its importance to fishery management, see Ed Goodman, Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal Comanagement as a Reserved Right; 30 ENVTL. L. 279, 349-52 (2000). (247) Id. at 53, 54 tbl.6. (248) Id. at 53. (249) Id. at 54 tbl.6. (250) 1 FEDERAL CAUCUS PLAN, supra note 7, at 56-57. (251) Id. at 57 tbl.7. (252) Id. (253) Id. (254) Id. (255) See discussion supra notes 96-138 and accompanying text. (256) 1 FEDERAL CAUCUS PLAN, supra note 7, at 60 tbl.8. (257) Id. The strategy advised NMFS and FERC to settle the Snake River Basin Adjudication as part of its effort to improve nonfederal hydropower impacts. Id. The Snake River Basin Adjudication is an ongoing water rights adjudication in the State of Idaho. For an explanation of how such a settlement could benefit Snake River salmon, see The Case For Dam Breaching, supra note 11, at 1045-46, 1053. For a discussion of how FERC could use its relicensing authority to benefit salmon, see Jack K. Sterne, One Hell of a Grand Idea: Applying the Lessons of the Grand Canyon Experiment to FERC's Relicensing of the Hells Canyon Complex, 28 ENVTL L. 1055 (1998). (258) See discussion supra notes 226-54 and accompanying text (summarizing habitat, harvest, and hatchery actions of the Federal Caucus Plan). Even where the strategy included dates for projects to begin, it either lacked finn completion dates or allowed for projects to last more than a decade. See 2 FEDERAL CAUCUS PLAN, supra note 7, at 9 (TMDL development to begin in 2001, with no completion date), 24 (mainstem restoration to last from 2001 to 2012), 27 (estuary restoration to last from 2001 to 2011). (259) See, e.g., 1 FEDERAL CAUCUS PLAN, supra note 7, at 56 (recommending using BPA and other funding sources to "implement needed reforms to hatchery programs, operations, and facilities"). (260) Id. at 21. (261) RETURN TO THE RIVER, supra note 52, discussed in Beyond Parity, supra note 9, at 112-17. (262) See infra notes 320-25 and accompanying text. (263) 1 FEDERAL CAUCUS PLAN, supra note 7, at 21. (264) Id. at 22. (265) Id. at 22. While the Federal Caucus cited PATH as one of the population-based tools relied upon in development of the strategy, several scientists viewed the entire all-H process and, ultimately, the 2000 BIOP as manifestations of NMFS and the Federal Caucus' abandonment of PATH. See, e.g., Testimony of Nicolas Bowles, Oregon Department of Fish and Wildlife (Sept. 14, 2000), 2000 WL 23832676. In these scientists' view, the federal agencies' switch from the PATH analysis--which had concluded that dam breaching was necessary to restore salmon populations--to the CRI analysis--which emphasized habitat restoration over breaching--represented an abandonment of sound science. Moreover, these scientists objected to backing away from the PATH process, which included the participation of state, tribal, and federal agencies, and instead relying on a process conducted solely by NMFS scientists. Id. On both PATH and the CRI, see SACRIFICING THE SALMON, supra note 3, ch. 13. (266) See infra notes 315-25 and accompanying text. (267) See supra notes 41-58 and accompanying text. (268) Jonathan Brinckman, Officials Say Drought's Impact Has Been Far-Reaching, OREGONIAN, Oct. 1, 2001, at A-1. (269) See infra notes 381-87 and accompanying text. (270) See infra note 394 and accompanying text. (271) See Michael C. Blumm & Daniel J. Rohlf, The BPA Power-Salmon Crisis: A Way Out, 31 Envtl. L. Rep (Envtl L. Inst.). 10,726, 10,726 (2001). (272) Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., Civ. No. CV01-00640-KI (D. Or. June 29, 2001). (273) Biological opinions are considered "final agency actions," and may be challenged under the Administrative Procedure Act (APA), 5 U.S.C. [section] 702 (2000). Bennett v. Spear, 520 U.S. 154, 178 (1997). Under the APA, agency actions must be upheld unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. [section] 706 (2000). (274) Plaintiffs' Complaint for Declaratory and Injunctive Relief at 1, Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., Civ. No. CV01-00640-KI (D. Or. June 29, 2001) [hereinafter NWF Complaint]. (275) Id. at 1-2. (276) Id. at 21; see also 2000 BIOP, supra note 7, at 9-203, 9-207 to 9-208. (277) NWF Complaint, supra note 274, at 23; see Endangered Species Act, of 1973, 16 U.S.C. [section] 1536(a)(2) (requiring use of best available science). (278) Id. at 23-25 (citing the Cumulative Risk Initiative, which analyzed salmon population risk based on the probability of a 90% population decline); see also supra notes 67-69 and accompanying text (explaining that NMFS's definition of survival is that at least one adult fish will return over a multi-year generation). (279) See supra notes 63-65 and accompanying text (describing 2000 BiOp's jeopardy standard). (280) NWF Complaint, supra note 274, at 25. (281) Id. at 24. (282) Id. at 25. (283) Id. at 30. (284) Id. at 27. (285) 2000 BIOP, supra note 7, at 9-203. (286) NWF Complaint, supra note 274, at 29-31. Specifically, the regulations require NMFS to consider the "effects of the action" and "cumulative effects" in developing a BiOp, but make clear that these terms do not include future federal actions or private activities that are not "reasonably certain to occur." 50 C.F.R. [subsection] 402.14(g), 402.02 (2001). (287) Endangered Species Act of 1973, 16 U.S.C. [section] 1536(b)(3)(A) (2000); NWF Complaint, supra note 274, at 30. (288) NWF Complaint, supra note 274, at 31 (discussing the BiOp's over-simplified approach of assuming survival changes are instantaneous), see also 2000 BIOP, supra note 7, at 9-202 to 9-203. 203. (289) NWF Complaint, supra note 274, at 31-32. (290) Id. at 32. (291) Id. at 33. (292) Id. NWF argued that "[t]hese are not actions that themselves will avoid or even mitigate for jeopardy, they are planning exercises to be carried out while salmon and steelhead continue to decline and FCRPS operations continue to take their toll." (emphasis added) Id. (293) Id. at 35; see discussion supra notes 139-43 and accompanying text (describing the emergency exemption). (294) NWF Complaint, supra note 274 at 35; see also 2000 BIOP, supra note 7, at 9-62, 9-88. (295) NWF Complaint, supra note 274, at 35. (296) Id. at 37. (297) Id.; see also 50 C.F.R. [subsection] 402.14(g), 402.02 (2001). (298) The "regulations ... state that a federal action avoids jeopardy and adverse modification of critical habitat only if the action does not appreciably reduce the prospects of a species' survival and recovery in the wild." NWF Complaint, supra note 274, at 38 (citing 50 C.F.R. [section] 402.02) (2001) (emphasis added by NWF). (299) Id. at 37-38. As a general proposition, the ESA prohibits the transport of endangered species "by any means whatsoever and in the course of a commercial activity," as an unlawful take of listed species. Endangered Species Act of 1973, 16 U.S.C. [section] 1538(a)(1)(E) (2000). The ESA allows, however, for species to be held in captivity or controlled environments, as long as the holding or use of the species was not in the course of a commercial activity. Id. [section] 1538(b)(1). This part of the statute, however, has been interpreted by FWS to allow actions such as captive breeding or providing medical care rather than entirely removing species from part of their wild habitat to a different part of their habitat for reasons other than rehabilitation or breeding. 50 C.F.R. [section] 17.3 (2001). (300) 16 U.S.C. [section] 1536(a)(2) (2000). (301) See supra notes 67-69 and accompanying text for a description of the one-fish survival standard. (302) See infra notes 420-30 and accompanying text. (303) Am. Rivers v. NMFS, No. 96-384 MA (D. Or. Apr. 3, 1997), aff'd, No. 97-36159 (9th Cir. Mar. 8, 1999), discussed in SACRIFICING THE SALMON, supra note 3, at 183-84. (304) 16 U.S.C. [section] 1536(a)(2) (2000). (305) See e.g., Nat'l Wildlife Fed'n v. Babbitt, 128 F. Supp. 2d 1274, 1300 (E.D. Cal. 2000). (306) Idaho Dep't of Fish & Game v. Nat'l Marine Fisheries Serv., 850 F. Supp. 886, 900 (D. Or. 1994). (307) Id. at 893. (308) Id. at 892. (309) Id. at 893. (310) Id. (311) Id. at 898. (312) Id. at 900. (313) Id. at 888. (314) NWF Complaint, supra note 274, at 22-24. (315) See GRETCHEN R. OOSTERHOUT & PHILIP R. MUNDY, THE DOOMSDAY CLOCK 2001: AN UPDATE ON THE STATUS AND PROJECTED TIME TO EXTINCTION FOR SNAKE RIVER WILD SPRING/SUMMER CHINOOK STOCKS (2001), available at http://www.tu.org/newsstand/library_pdfs/doomsday_clock_2001_report.pdf (discussing the Cumulative Risk Initiative). (316) See id. (discussing CRI modeling predicitions). (317) Id. (318) See 2000 BIOP, supra note 7, at 1-13 (explaining absolute extinction standard). In contrast to CRI, other modeling efforts have used a more conservative functional extinction standard that defines extinction as the point at which population numbers are so low that the species no longer has genetic viability. In such a situation, while several individuals of a species may remain, the gene pool has shrunk to such a degree as to ensure genetic bottlenecking and, ultimately, extinction. See OOSTERHOUT & MUNDY, supra note 315, at 11. (319) 2000 BIOP, supra note 7, at 1-13. It is unclear, however, if even the CRI justifies the use of the one-fish survival standard that NMFS employed in the 2000 BiOp. Rather than basing this standard on the CRI, NMFS seems to have pulled the one-fish survival standard from thin air. Personal communication with Steve Mashuda, Attorney, Save Our Wild Salmon Project, Earthjustice (Jan. 15, 2002). (320) OOSTERHOUT & MUNDY, supra note 315, at 11. (321) Id. (322) Id. (323) Id. at 11-12. (324) Id. (325) See Id. at 13, 14. (326) 2000 BIOP, supra note 7, at 1-13. (327) Id. (328) Id. NMFS stated that "best available science" requires agencies to select particular survival thresholds "upon the characteristics and circumtstances of each salmon species under consideration." Id. at 1-9. NMFS's adoption of the absolute extinction threshold seems to ignore this requirement. (329) NWF Complaint, supra note 274, at 23, (citing Cumulative Risk Initiative, Draft Report 15 (Apr. 7, 2000)). (330) OOSTERHOUT & MUNDY, supra note 315, at 11. (331) See supra notes 73-80 and accompanying text (discussing factors contributing to the decline of salmon populations and potential mitigation measures). (332) See supra notes 226-43 and accompanying text (discussing various habitat measures). (333) See supra notes 80 (hydropower measures), 258 (Federal Caucus Plan habitat proposals). (334) See, e.g., supra notes 116 (directing Corps to study effects of high temperature on salmon), and 123 (prescribing various studies of the effects of artificial transportation on salmon) and accompanying text. (335) 2000 BIOP, supra note 7, at 9-2. (336) See supra notes 284-85 and accompanying text (discussing the RPA's reliance on non-action agencies). (337) See Endangered Species Act of 1973, 16 U.S.C. [section] 1536(b)(3)(A) (2000) ("If jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) of this section and can be taken by the Federal agency or applicant in implementing the agency action." (emphasis added)). (338) 50 C.F.R. [section] 402.02 (2001). (339) 816 F.2d 1376 (9th Cir. 1987). (340) Id. at 1381. (341) Id. at 1378. (342) Id. at 1378-79. (343) Id. at 1380. (344) Id. at 1381. (345) Id. at 1380. (346) Id. at 1381. (347) Id. at 1387-88. (348) Id. at 1387. (349) Id. at 1386. (350) Id. at 1385. (351) Id. at 1388. (352) 50 C.F.R. [section] 402.02 (2001). (353) See discussion supra notes 145-69 and accompanying text. (354) See, e.g., supra notes 147, 164, 166, and accompanying text (describing agencies' requirement to fund offsite mitigation measures). (355) 50 C.F.R. [section] 402.02 (2001). (356) NMFS is, in fact, an agency within the National Oceanic and Atmospheric Agency, with primary authority over salmon harvesting. (357) Endangered Species Act of 1973, 16 U.S.C. [section] 1536(b)(3)(A) (2000). (358) See e.g., Southwest Ctr. for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515, 523 (9th Cir. 1998). (359) Id. (360) Id. at 517-18. (361) Id. at 517. (362) Id. at 518. (363) Id. (364) Id. at 518. (365) Id. at 518, 519 n.1. (366) Id. at 519 n.1. (367) Id. at 519. (368) Id. at 522-23. (369) Id. at 523. (370) 2000 BIOP, supra note 7, at 9-2. (371) See, e.g., supra notes 80, 84, 94, 112, 258, and accompanying text (discussing the time frame for implementation of the RPA). (372) Southwest Ctr. for Biological Diversity, 143 F.3d at 518, 523. The BiOp required the Bureau to obtain 500 acres of habitat by January 1, 1999, and the remaining 700 acres by January 1, 2001. Id. at 518. FWS then determined that, based on the assumption that the Bureau would obtain this land by the dates, the flycatcher would survive. Id. at 523. (373) See, e.g., supra note 80 (discussing the lack of commencement and completion dates in RPA-related studies). (374) Southwest Ctr. for Biological Diversity, 143 F.3d at 519, 523. (375) 2000 BIOP, supra note 7, at 9-2. (376) Southwest Ctr. for Biological Diversity, 143 F.3d at 523. (377) See supra notes 284-85 and accompanying text.. (378) 2000 BIOP, supra note 7, at 9-62, 9-88. (379) See discussion infra notes 398-406 and accompanying text. (380) 50 C.F.R. [section] 402.02 (2001). (381) John C. Hilke & Michael Wise, Competition and California's Power Crisis, 15 ANTITRUST 76, 77 (2001). (382) Id. at 76-77. (383) Steven Ferrey, Electricity, Contract Rules, and the Environment: Welcome to the Hotel California, 31 ENVTL. L. REP. (Envtl. L. Inst.) 11475, 11475 (2001). "Spot" markets are day-to-day markets. Id. Every day, power suppliers make available a certain amount of power for a bid. The highest or last bid sets the power rates for all sales of power during that day. Id. (384) Hilke & Wise, supra note 381, at 76-77. California's deregulation scheme required energy retailers to comply with retail price caps for four years, or until they had recovered their stranded costs. San Diego Gas & Electric was the only energy retailer to recover its stranded costs by July 1999, and therefore, the only major retailer allowed to pass on wholesale rates to its customers. Id. (385) Tina Daunt & Dan Weikel, The California Energy Crisis: L.A., Long Beach File Suits Over Gas Companies' Prices, L.A. TIMES, Mar. 21, 2001, at A22. (386) Hilke & Wise, supra note 381, at 77. (387) Tim Reiterman et al., PG&E Declares Bankruptcy; State's Crisis Plans Collapse, L.A. TIMES, Apr. 7, 2001, at A1. (388) Peter Behr & William Booth, Hot, Dark Summer Ahead for California; Drought Worsens Power Crunch, Senators Told, WASH. POST, Feb. 1, 2001, at El. (389) Steve P. Young, Salmon v. Hydropower in the Columbia Basin: The Time for Action Is Now, 15 J. ENERGY NAT. RESOURCES & ENVTL. L. 473, 473-75 (1995). (390) See Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. [section] 839e(a)(1) (2000). Investor-owned utilities and large industrial customers also pay wholesale rates. (391) Northwest Regional Preference Act of 1964, 16 U.S.C. [subsection] 837-837h (2000). (392) See 16 U.S.C. [section] 839e(a)(1) (2000). (393) Blumm & Rohlf, supra note 271, at 10,726. (394) Id. By not passing on increased wholesale rates to its customers, BPA granted many large industrial customers an unexpected windfall. For example, Kaiser Aluminum, which had shut down a smelter in Spokane, WA, made a more than 2400% profit by purchasing BPA power at BPA's set wholesale rate of $22.50 per megawatt hour and reselling it on the open market for up to $555 per megawatt hour. Even after paying laid-off employees their full wages, Kaiser made approximately $47 million by not operating the plant and selling BPA power. Sam Howe Verhovek, Lack of Power in the West Proves a Boon for Some, N.Y. TIMES, Dec. 29, 2000, at A15. (395) Blumm & Rohlf, supra note 271, at 10,726. (396) 2000 BIOP, supra note 7, at 9-62, 9-88. (397) BPA initially invoked the exception to excuse itself from spill requirements for five days in January, 2001. Then in February 2001, BPA announced it would exempt itself from spill and water storage requirements for the entire year. Jonathan Brinckman, BPA Says Crisis Means It's Solvency vs. Salmon, OREGONIAN, Feb. 8, 2001, at A1. (398) 55 F. Supp. 2d 1248, 1266-67 (W.D. Wash. 1999). (399) Id. at 1254, 1256. (400) Id. at 1266. Fisheries are usually regulated based on Total Allowable Catch (TAC) limits, under which a fishing fleet will have a maximum amount of fish that it can take during a year. Without time or area limits, a fleet will simply fish until it meets its TAC, and then quit fishing for the year. Id. at 1255. This type of fishing often results in sharp localized crashes in fish populations. Because the Steller sea lions required adequate stocks of fish in the same areas and during the same periods that the fisheries were active, the localized fish depletions often resulted in the sea lions lacking adequate food. To reduce the negative impact that the fisheries had on the sea lions, NMFS sought to disperse the fisheries both spatially and temporally by establishing certain times and locations in which the fisheries could operate. Id. at 1256. (401) Id. (402) Id. at 1266-67. (403) Id. at 1267 (citing UNITED STATES FISH AND WILDLIFE SERVICE & NATIONAL MARINE FISHERIES SERVICE, ESA [section] 7 CONSULTATION HANDBOOK 4-41 (1998)). (404) Id. at 1267. (405) Id. at 1266; see also discussion, supra notes 96-104 (describing the RPA's flow objectives). (406) Greenpeace, 55 F. Supp. 2d at 1267 (quoting Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 679) (D.D.C. 1997) ("[w]here an agency fails to articulate a rational connection between the facts found and the choice made, the Court [or counsel] may not apply a reasoned basis for the agency's action that the agency itself has not given."). (407) Endangered Species Act of 1973, 16 U.S.C. [section] 1536 (2000). (408) Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978) ("The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost."). (409) See, e.g., Blumm & Corbin, supra note 5, at 552-56 (describing the compromises in NMFS's 1995 BiOp on Columbia Basin hydroelectric operations). (410) 50 C.F.R. [section] 402.02 (2001). (411) 16 U.S.C. [section] 1536(a)(2) (2000). (412) Id. [section] 1536(b)(3)(A). (413) See id. [section] 1536(a)(2) ("Each Federal agency shall ... insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species."). In comparison, the ESA does allow agencies to incidentally "take" listed species, but only where that take will not jeopardize the species. Id. [section] 1539(a)(1)(B), (a)(2)(B). Therefore, jeopardy is absolutely prohibited under the ESA. (414) NWF Complaint, supra note 274, at 36. (415) 2000 BIOP, supra note 7, at 10-3. (416) Id. Specifically, for 2001, the 2000 BiOp authorized the take of juvenile salmon in the following amounts: 43% of Snake River spring/summer chinook, 88% of Snake River fall chinook, 43% of Upper Columbia River spring chinook, 13% of Lower Columbia River spring chinook, 28% of Lower Columbia River fall chinook, 52% of Snake River steelhead, 41% of Upper Columbia River steelhead, 41% of Middle Columbia River steelhead, 13% of Lower Columbia River steelhead, and 28% of Columbia River chum. (417) Id. at 10-4. The 2000 BiOp authorized adult takes of 18% of Snake River spring/summer chinook, 29% of Snake River fall chinook, 9% of Upper Columbia River spring chinook, 3% of Lower Columbia River spring chinook, 4% of Lower Columbia River fall chinook, 23% of Snake River steelhead, 12% of Upper Columbia River steelhead, 12% of Middle Columbia River steelhead, 3% of Lower Columbia River steelhead, 14% of Snake River sockeye, and 4% of Columbia River chum. (418) Id. at 10-3. (419) See, e.g., NAT'L MARINE FISHERIES SERV., REINITIATED SECTION 7 CONSULTATION, BIOLOGICAL OPINION, EFFECTS OF PACIFIC OCEAN AND PUGET SOUND SALMON FISHERIES DURING THE 2000-2001 ANNUAL REGULATORY CYCLE 85-87 (2000); see also NAT'L MARINE FISHERIES SERV., PUBLICATIONS AND BIOLOGICAL OPINIONS, available at http://www.nwr.noaa, gov/1publcat/allbiops.htm. (420) 50 C.F.R. [section] 402.14(g)(3)-(4) (2001). (421) Id. [section] 402.02. (422) Id. (423) Id. (424) Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121 (D.D.C. 2001). (425) Id. (426) Id. at 127, 130. (427) Id. at 127. (428) Id. at 127-28. (429) Id. at 128. (430) Id. at 130. (431) Daryl Kelley, Power Authority Debuts Amid Easing of State Crisis Energy, L.A. TIMES, Aug. 25, 2001, at B1. (432) Elisabeth Bumiller, Bush Says New Budget Is Likely to Post Deficit: Recession, Cost of War Cited; Not His Tax Cut SAN DIEGO UNION-TRIB., Jan 8, 2002, at A1. (433) Save Our Wild Salmon, The Bonneville Power Administration and the 2001 Salmon Migration: Failing Salmon, Failing People, Executive Summary 1 (2001), available at http://www.wildsalmon.org/info/pdf-folder.htm/ExsummaryMigration.pdf. (434) Id. (435) TRIBAL RESTORATION PLAN, supra note 50, at 5D-1 to 5D-4. (436) Id. at 5B-27 to 5B-35 (recommending immediate improvements to dam operations, breaching, and permanent drawdowns). (437) See id. at 5D-1 to 5D-4. (438) See SACRIFICING THE SALMON, supra note 3, chs. 7, 9, 13. (439) See The Case For Dam Breaching, supra note 11, at 1012-23. (440) OOSTERHOUT & MUNDY, supra note 315, at 21. Professor of Law, Northwestern School of Law of Lewis & Clark College. This Article was written as part of the Northwest Water Law and Policy Project. Thanks to Bill Stewart for able research assistance and to Michael Mayer for superb editorial assistance. Attorney, Western Environmental Law Center; J.D. 2001, magna cum laude, Northwestern School of Law of Lewis & Clark College. The author would like to thank Steve Mashuda for responding to many questions about the BiOp. Many thanks also to Mark Riskedahl for reviewing an earlier draft of this Article and for his continual support and inspiration. |
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