Beyond the parity promise: struggling to save Columbia Basin salmon in the mid-1990s.I. INTRODUCTION II. AN OVERVIEW OF MAINSTEM RESTORATION MEASURES A. Inriver Migration: Flows, Drawdowns, and Spills B. Out-of-River Migration: Barging and Trucking III. JUDICIAL REJECTION OF SALMON RESTORATION PLANS A. Establishing the Parity Promise B. Listing Salmon Under the Endangered Species Act C. Idaho Department of Fish & Game v. National Marine Fisheries Service: Rejecting the Status Quo D. Northwest Resource Information Center v. Northwest Power Planning Council: Reviving the Parity Promise IV. Responding to the Courts: The Competing Salmon RESTORATION PLANS A. The 1994 Amendments to the Columbia Basin Fish and Wildlife Program 1. River Flows 2. Reservoir Drawdowns 3. Spills 4. Water Purchases 5. Transportation 6. Hatchery Production 7. Summary B. The 1994-98 NMFS Biological Opinion 1. River Flows 2. Reservoir Drawdowns 3. Spills 4. Water Purchases 5. Transportation 6. NMFS's Recovery Plan and BPA's System Operation Review C. The Tribal Anadromous Restoration Plan 1. River Flows 2. Reservoir Drawdowns 3. Spills 4. Transportation 5. Hatchery Production 6. Summary D. Comparing the Three Salmon Restoration Plans 1. River Flows 2. Reservoir Drawdowns and Spills 3. Transportation V. FAILING TO IMPLEMENT THE NMFS BIOLOGICAL OPINION IN 1995 A. Flow Augmentation Measures 1. Spring Flows in the Snake 2. Spring Flows in the Columbia 3. Summer Flows in the Snake 4. Summer Flows in the Columbia 5. Water Supplies for Fish Flows a. Water from the Upper Columbia Reservoirs b. Water from the Snake Reservoirs B. Spill Measures C. Reservoir Drawdowns VI. IMPOSING A FISH AND WILDLIFE "BUDGET," RESTRUCTURING RIVER Governance, and Improving Salmon Science A. BPA's Financial Crisis B. New Industrial Power Contracts and the "Stranded Costs" Issue C. The Fish and Wildlife "Budget" and the Concept of Foregone Hydropower Revenues D. Fish and Wildlife Governance E. Improving the Science of Salmon Restoration 1. The Report of the Independent Scientific Group 2. Senator Gorton's Science Rider VII. CONCLUSION: THE BURDEN OF UNCERTAINTY AND SALMON RESTORATION I. INTRODUCTION In 1980, the Northwest Power Act ordered "parity" between salmon protection and hydroelectric generation in the operation of the Federal Columbia River Power System (FCRPS).(1) A decade and a half later, salmon restoration efforts under the 1980 statute were eclipsed by the directives of the Endangered Species Act (ESA).(2) By the mid-1990s, the saga of Columbia River salmon restoration began to resemble a morality play, as all three branches of the federal government, as well as the region's states and Indian tribes, were actively involved in suggesting, promulgating, critiquing, or litigating various salmon plans aimed at reversing the alarming declines suffered by the region's signature natural resource. While salmon restoration seemed to have clearly moved beyond the "parity promise" of the Northwest Power Act,(3) the attention seemed to do the salmon little good, as run sizes, particularly those of the endangered Snake River stocks, continued to plummet.(4) Two landmark judicial opinions called attention to the ineffectiveness of salmon restoration efforts in 1994. Both the Ninth Circuit and the federal district court of Oregon characterized the plans promulgated by the Northwest Power Planning Council (Council) under the Northwest Power Act and the National Marine Fisheries Service (NMFS) under the ESA as substantively inadequate. The Ninth Circuit faulted the Council's plan for failing to give proper deference to the views of fishery agencies and for adopting river flow measures advocate. by hydropower interests, despite what the court considered an "overwhelming consensus among [fishery] agencies and tribes in favor of significantly higher flows and more scientifically-based biological objectives."(5) The district court struck down NMFS's 1993 biological opinion (BiOp) on Columbia Basin hydroelectric operations because it was "too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation," resulting in "relatively small steps, minor improvements and adjustments--when the situation literally cries out for a major overhaul."(6) This unusual judicial impatience with state and federal restoration plans followed widespread claims that the plans relied too heavily on artificial transport of juvenile salmon by barge and truck, instead of restructuring the hydroelectric system to make the river a safer environment for migrating salmon.(7) In part, the apparent ineffectiveness of restoration efforts was due simply to the fact that the plans are new, and the salmon life cycle is long. Even successful plans will take at least four or five years, and no doubt longer, to bear fruit. This inherent time lag makes meaningful evaluation of remedial measures impossible in the short run, and difficult over the long run.(8) The lack of feedback as to what is and is not working helped to spawn considerable intergovernmental disagreement about the path salmon restoration ought to take. Many of the disagreements occasioned by the scientific uncertainty were encapsulated in the governmental responses to the 1994 court decisions. First, in late 1994, the Council revised its Columbia Basin Fish and Wildlife Program, calling for keeping juvenile salmon in the river, not barging or trucking them, except in extremely low river flows.(9) For the first time, the Council called for significant drawdowns of mainstem reservoirs to increase flow velocities to speed salmon migration.(10) Second, less than three months later, in early 1995, NMFS released a revised BiOp, to comply with the ESA, which did not call for reservoir drawdowns, postponing a decision on them pending further study.(11) Instead, NMFS prescribed de tailed changes to hydroelectric project operation to provide increased flows without drawdowns.(12) Because the new BiOp continued heavy reliance on barging and trucking juvenile salmon, it prompted another lawsuit from environmentalists.(13) Finally, in mid-1995, a coalition of Columbia Basin Indian tribes with treaty fishing rights released their own salmon restoration plan.(14) The tribal plan resembled the Council's, in that its premise was reliance on inriver transport of juvenile salmon, and it endorsed reservoir drawdowns.(15) However, the tribal plan was more aggressive than the Council's program in calling for the use of hatchery supplementation, a reflection of the tribes' greater faith in the efficacy of artificial production. This in turn may be a product of the fact that the tribal goal, restoring salmon to historic levels of abundance,(16) is more ambitious than the Council's goal of doubling run sizes without the loss of biological diversity.(17) During 1995, hydroelectric operators claimed to implement the NMFS BiOp,(18) since only that plan was thought to possess binding authority.(19) However, an examination of actual 1995 hydroelectric operations reveals that the operations departed substantially from the NMFS BiOp.(20) These departures also became the subject of a court challenge.(21) 1995 also witnessed considerable congressional activity related to salmon restoration. The most prominent legislative proposal was one that would have waived federal environmental laws and imposed a "cost cap" on federal expenditures for Columbia Basin fish and wildlife measures.(22) This was the product of an effort to safeguard the financial viability of the Bonneville Power Administration (BPA), the region's federal electric power wholesaler,(23) which has the burden of paying most of the cost of salmon recovery.(24) Congress eventually decided against waiving environmental laws and imposing a legislative cost cap after federal and regional negotiators brokered an agreement in which federal agencies agreed to establish a six-year "budget" that will have many of the same effects as the proposed cost cap, but which includes a contingency fund to cover unanticipated costs and waives no environmental laws.(25) Disagreements over the details of the budget prevented the signing of a memorandum of agreement codifying the publicized budget for nearly a year, during which the budget was transformed into two budgets, one covering BPA's out-of-pocket expenditures on fish and wildlife measures, the other covering changes in hydroelectric operations to benefit fish migration.(26) Although it chose not to cap fish and wildlife costs, Congress did instruct the Council to undertake a study of Columbia Basin fish and wildlife "governance" and make suggestions as to how fish and wildlife decision making in the Columbia Basin could be improved.(27) In 1996, Congress again waded into salmon recovery issues, when the Energy and Water Development Appropriations Act(28) amended the Northwest Power Act to establish a scientific review panel that would make recommendations on fish and wildlife measures funded by BPA.(29) Although this provision, known as the Gorton Science Rider, largely duplicated an interagency agreement signed earlier in 1996 between NMFS and the Council,(30) the amendment might be interpreted to change the criteria by which fish and wildlife measures are judged and perhaps to effectively overturn the deference to fishery agencies and tribes required by the Ninth circuit.(31) Underlying all of this legislative, administrative, and judicial activity lay fundamental uncertainties in the science of salmon restoration. In recent years, a number of scientific reports have issued conflicting opinions as to the efficacy of transporting juvenile salmon by barge and truck versus inriver migration, the level of river flows necessary to optimize inriver migration, and the appropriateness of reservoir drawdowns.(32) This scientific uncertainty has allowed proponents and opponents of barge and truck transport, increased flows, and reservoir drawdowns to argue that their preferred approach was scientifically supported, while contending that the disfavored approach was scientifically suspect. The upshot was that arguments on all sides assumed a kind of religious holy war in which the science, like the Bible, was on everyone's side. And while the arguments raged, the salmon continued to decline. Recent run size estimates for many Columbia Basin stocks are the lowest in recorded history.(33) This Article examines the struggles to agree upon and implement an effective Columbia Basin salmon restoration in the mid-1990s. Part II explains various mainstem passage measures and some of the scientific uncertainty concerning their efficacy. Part III examines the two landmark court decisions of 1994. Part IV is a detailed examination of the response to those decisions by the Council and NMFS, as well as an exploration of the restoration plan proposed by the tribes. Part V looks at how the NMFS plan was and was not satisfied by hydroelectric operations during 1995. 1995 is an appropriate year on which to focus because, unlike the high flow year of 1996,(34) in 1995 river flows were closer to normal levels.(35) It should be noted, however, that even with the near record runoff in 1996, it took settlement of a lawsuit to assure that the flow and spill measures called for by the NMFS plan would be satisfied.(36) Part VI explains the efforts to control BPA's costs that ultimately led to the five-year fish and wildlife "budget," its potential effects on salmon restoration, the Council's proposal for a new fish and wildlife governance structure, and efforts to improve the science of salmon restoration. The Article concludes, in Part VII, that if the region continues to demand a high level of scientific certainty before undertaking expensive salmon restoration measures, like reservoir drawdowns and substantially increased flow velocities, endangered Snake River salmon runs will never recover to produce what the United States promised the treaty tribes over 140 years ago: a sustainable livelihood from fishing.(37) II. AN OVERVIEW OF MAINSTEM RESTORATION MEASURES At the outset, we should acknowledge that we are well aware that effective salmon recovery must account for the entirety of an extremely complex life cycle. Thus, restoring Columbia Basin salmon will require, at a minimum, better land management practices to protect and restore spawning habitat; more sensitive water rights administration to ensure that sufficient water is left for spawning and rearing; wetlands protection to supply essential food, especially in the estuary; ocean harvest regulation that ensures adequate adult escapement for spawning; and sensitive operation of hatcheries that does not compromise the genetic integrity of wild stocks. These life cycle concerns have been emphasized by a number of recent scientific studies, with which we have no quarrel.(38) But our focus in this study is on the mainstem of the Columbia and Snake Rivers through which Columbia Basin salmon must migrate and which has historically been dominated by the operation of federal dams largely to generate electricity. It is in the mainstem where roughly eighty percent of juvenile salmon perish.(39) Without substantial alteration in the way the dams are operated, focusing on other life cycle concerns, we believe, amounts to a futile distraction. On their journey to the ocean, downstream migrating salmon smolts must bypass mainstem dams(40) in one of five ways: 1) through the powerhouse and hydroelectric turbines, 2) through ice and trash sluiceways, 33 by spill over dam spillways, 4) through structural bypass facilities, or 5) via a barging and trucking program that collects smolts and transports them downstream for release below Bonneville Dam. In the first four methods, the juvenile salmon remain in the river, passing through the dams by various means. The fifth possibility, transporting juvenile salmon, contemplates temporarily removing the fish from the river. Thus, two competing approaches for improving juvenile salmon survival rates in the basin have evolved: 1) salmon may be kept in the river, and inriver conditions improved to hasten their migration, or 2) salmon can be removed from the river and transported, via barge or truck. Each method is discussed below. A. Inriver Migration: Flows, Drawdowns, and Spills Inriver conditions can be improved by increasing river flow rates, improving dam structures, or changing dam operations (such as increasing spill) for safer fish passage. Flow improvement measures include flow augmentation and reservoir drawdowns. Flow augmentation increases river flows by releasing water from storage dams. Flow augmentation benefits migrating juvenile salmon by speeding their migration to the ocean, thus more closely mimicking natural river conditions. Increased flow reduces exposure to reservoir predation and minimizes water quality problems, such as nitrogen supersaturation and high temperatures.(41) Dam operators do not necessarily lose power as a result of increased flows, since the water passes through the energy-generating turbines of the dams.(42) But peak juvenile migration periods occur at a time when demand for power is low and dam operators are attempting to store water for the upcoming winter in anticipation of increased power needs. The conflict between increased salmon flows and power generation is thus one of timing.(43) Reservoir drawdowns, which may be employed singularly or in combination with flow augmentation, amount to lowering the elevation of reservoirs by releasing stored water downstream. In so doing, drawdowns reduce the cross-sectional area of reservoirs and benefit migrating salmon by increasing the rate of flow, thus speeding their migration to the ocean.(44) Drawdowns essentially provide the same benefits of flow augmentation, without the provision of upstream water.(45) Like flow augmentation, water is passed Through the turbines during a reservoir drawdown. NMFS found drawdowns effective in increasing smolt survival,(46) but others believe that there is little hard proof that drawdowns will work.(47) Nevertheless, when either flow augmentation or drawdown is combined with improvements in dam passage--such as spill, screens, or bypass channels(48) to keep fish from going through the turbines--juvenile survival rates should increase. The relationship between increased flows and increased survival has, however, become an issue of widespread dispute.(49) In late 1996, the Independent Scientific Group of the Northwest Power Planning Council endorsed permanent drawdowns, not so much to reduce travel time, but instead to create mainstem spawning habitat.(50) Flow improvement measures are necessary on the mainstem Columbia and Snake Rivers because Columbia Basin dams, dangerous obstacles to migrating juveniles in themselves, have significantly decreased natural flows of the Snake and Columbia Rivers during the spring and summer migration seasons, creating reservoirs and lakes where rivers previously flowed. These decreased flows can affect juvenile salmon in many ways: increasing exposure time to predation, raising water temperatures which increases susceptibility to disease, creating water quality problems, and increasing delays in migration.(51) Spill of water over a dam is a bypass strategy, not a flow improvement strategy. During spill, smolts are spilled over the top of the dam, thus avoiding the turbines entirely. That means that dam operators lose potential power generation when spill occurs.(52) Spill can be used in conjunction with flow augmentation or reservoir drawdowns, if the drawdown is not down to natural river level. Smolts spilled over a dam experience zero to three percent mortality, while those that pass through turbines, the least desirable passage route, suffer five to fifteen percent mortality.(53) But spill can cause nitrogen supersaturation, which may lead to gas bubble trauma in smolts and adults under some conditions.(54) Nonetheless, frequent past occurrences of high levels of spill, often due to factors other than salmon migration--such as turbine outages or high natural flows in excess of turbine capacity--have produced few observable negative effects.(55) Spill remains one of the safest means of dam passage.(56) B. Out-of-River Migration: Barging and Trucking The second basic approach to improving juvenile salmon survival is to remove the smolts from the river and transport them, via barge or truck, to a safer spot downriver, where they may safely complete their migration to the Pacific Ocean. Transportation involves capturing the smolts through a collection facility and placing them on trucks or barges for shipment downstream. In theory, transportation improves smolt survival by removing smolts from the river, thus reducing the mortalities that would otherwise be inflicted by the hydropower system.(57) However, despite twenty years of experience,(58) the benefits of transportation remain uncertain. Also, transportation produces adverse effects of its own. In addition to the stress associated with handling and crowding,(59) transportation may allow disease to spread from hatchery smolts to wild smolts.(60) Both disease and stress may produce mortalities after the smolts are released.(61) In addition, transportation produces long-term adverse effects such as disrupting the smolt's ability to find its way back to its natal stream as an adult,(62) and it likely reduces genetic diversity.(63) Although the precise effects of transportation have yet to be adequately measured, the collection process alone produces observable direct mortality rates of up to six percent.(64) In 1994, NMFS and the U.S. Fish and Wildlife Service submitted the merits of transportation to an independent scientific peer review. The peer review found no basis to rely on transportation as a principal recovery method, concluding that transportation produced positive effects only when river conditions were most adverse to salmon--that is, low flows and little or no spill.(65) In 1996, the Council's Independent Scientific Group concluded that "even if all juvenile salmon could be collected for transportation, there is not enough evidence from previous research to suggest that even the minimum survival rates necessary for maintenance of population levels could be achieved, let alone those survival rates necessary for rebuilding salmon populations."(66) Transportation's most significant benefit may be non-biological. By removing smolts from the river, it allows the continuation of river operations detrimental to salmon, such as maximizing winter flows for hydropower generation. Despite the inconclusive science on the biological benefits of transportation, NMFS, in its 1996 BiOp, claimed that transportation reduces smolt mortalities and increases the numbers of returning adults.(67) These two divergent approaches to increasing juvenile salmon survival--improving inriver conditions so that juveniles may migrate safely, or transporting the salmon out of the river--formed the landscape of alternatives for the Council, NMFS, and the tribes, in formulating a plan for increasing salmon survival. Often, the plans adopted a "spread the risk" approach, employing both inriver and out-of-river approaches to improve juvenile salmon survival. This mixed strategy often was due to the lack of agreement about the level of scientific proof indicating which approach would best restore salmon populations. III. JUDICIAL REJECTION OF SALMON RESTORATION PLANS A. Establishing the Parity Promise Systematic efforts to restore Columbia Basin salmon runs began in 1982, when the Northwest Power Planning Council, an interstate compact agency authorized by the Northwest Power Act,(68) promulgated its first version of the Columbia Basin Fish and Wildlife Program (the program). The statute promised "parity" between hydropower operations and fish and wildlife(69) and called for a program to restore fish and wildlife populations to the extent "affected by the development and operation" of the Columbia Basin hydroelectric system.(70) Congress set tight time deadlines for the promulgation of this program, explicitly required that it include improved river flows and improved fish passage at mainstem dams, and directed that it be based on recommendations of the region's fishery agencies and Indian tribes.(71) The driving force behind these requirements was the sense of urgency about the fate of upper basin salmon runs, several of which were under consideration for listing under the Endangered Species Act (ESA) when the Northwest Power Act passed in 1980.(72) Although the Council met the time deadlines established by Congress,(73) the program it promulgated in 1982 departed in significant ways from the fishery agency and tribal recommendations. Despite the fact that the Northwest Power Act's legislative history instructed the Council not to act as a "super fish and wildlife entity,"(74) the Council deviated from the recommendations by rejecting a proposed schedule of "sliding scale" flows that would vary depending on the expected runoff but would nonetheless provide fixed flows.(75) Instead, the Council's program included a volume of storage water that would be made available to representatives of the fishery agencies and tribes who could shape the volume into fish flows as they deemed fit within a specified time period.(76) This "Water Budget" was the centerpiece of the Council's 1982 Program and was heralded at the time as an innovative means of balancing the needs of fish and hydropower.(77) However, the budget was seriously flawed: it contained too little water to meet the recommended flows for the Snake River, the budget period ended before the peak migration of many salmon runs, and the budget was regularly ignored by federal water managers.(78) Because the Northwest Power Act gave the Council ambiguous authority to enforce the program,(79) and because the Council proved itself to be largely indifferent to implementation issues,(80) the flows the program promised often were not delivered.(81) Instead of transporting fish downstream with increased river flows, federal water managers developed a system of truck and barge transportation.(82) Both the Council and the fish and wildlife agencies acquiesced to transportation, despite the fact that the Northwest Power Act explicitly called for improved river flows.(83) B. Listing Salmon Under the Endangered Species Act The failure to restructure river flows produced several reactions. First, in March 1990, the Columbia Basin Fish and Wildlife Authority, a coalition of federal and state fish and wildlife agencies and Indian tribes, proposed a comprehensive mainstem flow regime that reiterated the 1981 fishery agency and tribal recommendation calling for specified flows on the lower Columbia and summer flows through August of each year.(84) Second, also in March, the Shoshone-Bannock tribe filed a petition to list the Snake River sockeye under the ESA.(85) Two months later, in May 1990, a coalition of environmental groups submitted a petition to list several runs of Snake River chinook.(86) The ESA petitions initiated a new era of efforts to restore Columbia Basin salmon. In response to the ESA petitions, Oregon Senator Mark O. Hatfield (R-Or.) convened a series of meetings with major river users in an effort to seek a means to avert listing determinations. Dubbed the "Salmon Summit," these meetings failed to produce a plan to avert the listings, but they succeeded in producing a noteworthy contribution to salmon restoration efforts: a proposal, championed by Idaho Governor Cecil Andrus, to draw down lower Snake River reservoirs during the spring migration by twenty-five feet or more.(87) By reducing the cross-sectional area of a reservoir, a drawdown would produce increased flow velocities with less water released from storage.(88) After the Salmon Summit, reservoir drawdown became a prominent issue in salmon restoration planning. As an additional response to the ESA petitions, Senator Hatfield requested a status report on the petitioned salmon runs from NMFS and the Oregon Department of Fish and Wildlife.(89) The alarming figures in the ensuing report--for example, spring chinook were at only six percent of the 1961 count in the Salmon River, the Snake River's principal tributary--left little doubt that ESA listings were imminent.(90) In November 1991, NMFS listed the Snake River sockeye as an endangered species.(91) Five months later, in April 1992, the agency listed Snake River chinook runs as threatened,(92) a classification that was subsequently downgraded to endangered in 1994.(93) The listings prompted the Council to amend its program in late 1991 to improve mainstem flows for migrating salmon.(94) For the first time, the Council set a spring Snake River flow "target" of a minimum of 85,000 cubic feet per second (cfs) and included a number of measures designed to achieve the target.(95) Prior to the 1991 amendments, most of the Water Budget was supplied by runoff, not storage.(96) The amendments ended this practice, and in the process tripled the amount of water released from storage.(97) However, the total amount of water promised to increase flows in the lower Snake River flows was not materially different than that promised in the original Water Budget nearly ten years earlier.(98) Moreover, under most flow conditions the Council's program continued to rely on barge and truck transport of juvenile salmon, despite acknowledging that the benefits of artificial transportation were uncertain.(99) The Council itself recognized the inadequacy of the measures in its 1991 amendments to rebuild the salmon runs.(100) As a result, the amendments called for reservoir drawdowns within four years unless studies demonstrated them to be "structurally or economically infeasible, biologically imprudent or inconsistent with the . . . Northwest Power Act."(100) Almost contemporaneously with the promulgation of the 1991 amendments, NMFS began to implement the ESA by initiating consultation procedures. In April 1992, NMFS issued a BiOp that determined that 1992 Columbia Basin hydroelectric operations would not jeopardize the continued existence of Snake River salmon.(102) This "no jeopardy" conclusion was a consequence of NMFS's adoption of a controversial standard under which hydroelectric operations were approved if they merely improved river conditions from the previous year,(103) a standard that failed even to level the decline of the listed species.(104) As part of the 1992 "no jeopardy" opinion, NMFS issued an incidental take statement that allowed takings of listed salmon but required measures to minimize the takes, such as modifying dam structures and operations.(105) The next year, NMFS issued another "no jeopardy" opinion concerning the effect of Columbia Basin hydroelectric operations, but refined the standard it used the previous year into a two-step process: first, the agency evaluated whether the proposed operations would reduce salmon mortalities below those incurred during a selected 1986-90 "base period"; second, it considered whether the operations, in combination with all other human effects on salmon, were reasonably likely to reduce mortalities over the long run so that salmon populations would stabilize.(106) The goal was to stabilize salmon populations at recent levels within four salmon life cycles, about fifteen years.(107) NMFS approved the proposed 1993 hydroelectric operations because, influenced by the Council's 1991 amendments to its program, operations would increase Snake River spring flows from an expected average of 48,000 cfs in 1992 to 86,000 cfs in 1993.(108) The states of Idaho and Oregon promptly challenged this "no jeopardy" BiOp. C. Idaho Department of Fish & Game v. National Marine Fisheries Service: Rejecting the Status Quo The Idaho Department of Fish & Game challenged the 1993 BiOp's conclusion that Columbia Basin hydroelectric operations would produce no jeopardy to listed salmon.(109) Idaho claimed that the two-step methodology NMFS employed in arriving at its no-jeopardy conclusion was flawed, and the result was arbitrary decision making.(110) On March 28, 1994, District Judge Malcolm Marsh agreed with Idaho and struck down the 1993 NMFS BiOp. Judge Marsh faulted the NMFS framework for making the jeopardy decision on two grounds. First, he concluded that NMFS's justification for choosing the 1986-90 "baseline period"--against which proposed hydroelectric operations would be measured--on grounds of "consistent management practices" was neither factually accurate nor biologically sound.(111) NMFS had in fact employed longer baselines in 1992,(112) and Judge Marsh concluded the litmus of consistent practices "necessarily focuses more upon system capability than the needs of the species."(113) The short four-year baseline skewed the jeopardy determination because the years 1986-90 were years of drought and extremely low salmon runs, making it relatively easy to conclude that proposed operations would produce a "significant reduction" in salmon mortality, and thus "no jeopardy" to the species.(114) This focus on "system capabilities tending to the status quo rather than the stabilization of the species" was, according to Judge Marsh, arbitrary and capricious.(115) The second flaw in NMFS's framework for making the jeopardy determination concerned the agency's use of life cycle models to predict the effect of proposed operations on salmon populations, and whether the result would lead to stabilization at 1990 population levels within four salmon generations, or by 2008.(116) Although all three of the models NMFS employed were fraught with uncertainty--Judge Marsh referred to them as "educated guesses premised on `crude assumptions'"(117)--NMFS discounted pessimistic assumptions in each of the models.(118) Disregarding worst case assumptions "without well-reasoned analysis and without considering the full range of risk assumptions" was arbitrary and capricious, Judge Marsh determined.(119) For one thing, the result inflated the confidence level that proposed operations would allow salmon populations to rebound to 1990 levels by 2008 from fifty percent to between sixty and seventy percent.(120) For another, the models failed to consider the risks associated with small populations, such as inbreeding and what is called the "extinction vortex," where environmental catastrophes could extirpate the species.(121) Having concluded that the methodologies underlying both NMFS's selection of a baseline and its predictive plans were arbitrary,(122) Judge Marsh made some suggestions as to how NMFS could produce a BiOp satisfying the directives of the ESA. He suggested that NMFS consider alternative baselines(123) and "significant information and data from well-qualified scientists such as the fisheries biologists from the states and tribes" in carrying out the ESA's mandate of making decisions on the basis of the best available scientific knowledge.(124) This admonition to consult the biological views of the states and tribes may be one of the most enduring aspects of the decision, and is remarkably similar to the sentiments the Ninth Circuit would articulate in its interpretation of the Northwest Power Act six months later.(125) Finally, in perhaps the most remarkable part of his opinion, Judge Marsh counseled that small, incremental steps would not satisfy the ESA: [T]he process is seriously, "significantly" flawed because it is too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation--that is, relatively small steps, minor improvements and adjustments--when the situation literally cries out for a major overhaul. Instead of looking for what can be done to protect the species from jeopardy, NMFS and the other action agencies have narrowly focused their attention on what the establishment is capable of handling with minimal disruption.(126) This judicial impatience with administrative incrementalism was echoed by the Ninth Circuit in the opinion analyzed in the next subpart. D. Northwest Resource Information Center v. Northwest Power Planning CounciL Reviving the Parity Promise After adopting the amendments to the Columbia Basin Fish and Wildlife Program in December 1991, the Council consolidated those amendments and others it adopted in 1992 into what it called the "Strategy for SAlmon."(127) Although the strategy offered the first improvement in mainstem flows since the program was initially promulgated in 1982,(128) even the Council's chairman conceded that the amendments were "not enough for the fish."(129) The Council's failure to set biological objectives drew the following criticism: It is a strange program that calls for incremental improvements in hydropower/salmon tradeoffs before establishing the goals those improvements are to achieve. The basic flow is one of approach: the Council starts from the premise that not much can be done because of economic costs that entrenched river users claim they will suffer. The contrast between the proposals of the 1991 amendments and the biologically-based results of the Columbia Basin Fish and Wildlife Authority's on flows and Idaho's on reservoir drawdowns is Striking.(130) This incremental approach, the result of a twelve-year history of deference to power interests,(131) was challenged by a coalition of environmental groups and the Yakama Indian Nation for being too weak, and by industrial customers of BPA for being too strong. Six months after Judge Marsh's decision striking down the NMFS BiOp, the Ninth Circuit invalidated the Council's 1991 amendments, agreeing with the environmentalists and the tribe.(132) The court, in an opinion by Judge Thomas Tang, described the case as a "classic struggle" between salmon and hydropower, "the two great natural resources of the Columbia River Basin...[a]t odds for most of this century."(133) Noting that Columbia Basin salmon had declined from 10 to 16 million fish annually to only about 2.5 million fish,(134) and that hydropower was responsible for about eighty percent of the decline,(135) the court determined that the 1980 Northwest Power Act "marked an important shift in federal policy," aimed at "making fish and wildlife a 'co-equal partner' with the hydropower industry."(136) The court characterized the statute as "mark[ed by]...its legislative craftsmanship," noting several innovations such as requiring "textual consistency" (that is, interpreting its provisions consistent with other statutory provisions, especially environmental laws), adopting a systemwide approach, redefining fish and wildlife mitigation, lowering the burden of proof for taking action, and tapping hydroelectric revenues to finance restoration efforts.(137) But despite these legislative innovations, and despite the fact that the Council's program had been acclaimed as the world's largest biological restoration program,(138) the court concluded that the program had failed to satisfy the Act's directives.(139) The program's failures were essentially two: 1) it contained no biological objectives, and 2) it failed to explain the statutory basis for the restoration measures it adopted and those it rejected, particularly recommendations of the region's fishery agencies and Indian tribes that the Council rejected.(140) The Council argued that its reasoning for rejecting agency and tribal recommendations was scattered throughout the administrative record, although contained largely in an appendix entitled "Response to Comments."(141) But the court rejected the Council's invitation to search the record because it interpreted section 4(h)(7) of the Act, directing the Council to explain "in writing, as part of the program," to require explanation of the relationship between program recommendations and the statutory criteria in the program document itself, not in an appendix.(142) In perhaps its most notable ruling, the Ninth Circuit concluded that the Northwest Power Act's provision requiring the Council to give "due weight" to the recommendations of the fishery agencies and tribes(143) demanded "a high degree of deference," not only to their recommendations but also to the agencies' and tribes' interpretations of the statute.(144) This conclusion was largely the product of the court's structural interpretation of the Northwest Power Act. Comparing the Act's power provisions to the statute's fish and wildlife provisions, Judge Tang determined that the former were open-ended provisions, giving the Council flexibility to make quasi-legislative decisions; however, because the latter provisions contain more detailed criteria and procedures, they narrowed the Council's discretion considerably, requiring the Council to "heavily rely" on the recommendations of the fishery agencies and tribes.(145) We conclude that [section 4(h) of the Northwest Power Act] binds, more than unleashes, the Council's discretion with respect to fish and wildlife issues. Indeed, we are convinced that the fish and wildlife provisions of the [Act] and their legislative history require that a high degree of deference be given to fishery managers' interpretations of such provisions and their recommendations for program measures.(146) While ruling that the fishery agencies and tribes were entitled to a high degree of deference, the court rejected the argument of BPA's industrial customers that the Act required each program measure to satisfy a cost-benefit test. The court ruled that "a fish and wildlife measure cannot be rejected solely because it will result in power losses and economic costs," concluding that the statute "prevents cost considerations from precluding biologically sound restoration of anadromous fish in the Columbia River Basin...so long as an adequate, efficient, economical, and reliable power supply is assured."(147) Thus, the Council must assure only that overall its program does not produce an uneconomical power supply,(148) quite unlikely given that even reservoir drawdowns probably will produce retail rate increases of just five to ten percent.(149) Although the court remanded the case to the Council to repair its administrative record, to aid the Council on remand it also construed the five statutory criteria that the program recommendations must satisfy.(150) The court described these criteria as "significantly circumscrib[ing] the Council's discretion," and no less a substantive obligation than the "equitable treatment" requirement previously interpreted by the Ninth Circuit as a substantive directive.(151) These criteria require 1) program measures to complement fishery agency and tribal actions; 2) the use of the best available scientific information; 3) the setting of sound biological objectives, and the adoption of the cheapest alternative only where equally effective ecological alternatives exist; 4) consistency with Indian treaty rights; and 5) improved salmon survival at dams and improved river flows. The first criterion requires program measures to "complement the existing and future activities" of the fishery agencies and tribes.(152) Although the court did not decide whether the Council's program satisfied this standard, it noted that the recent decision of Judge Marsh striking down the NMFS BiOp under the ESA(153) urged "policy and operations in a direction away from the status quo towards affirmative action" and observed that "the Council's rejection of the agencies' and tribes' consensus as to increased flows and biological objectives does not appear to square well with these efforts."(154) The court construed the second criterion, using "best available scientific knowledge,"(155) as requiring deference to the fishery agency and tribal interpretations and allowing for "reasonable inferences and predictions," but the court concluded that the Council's failure to explain its rejection of the fish agency and tribal recommendations prevented a judicial determination as to whether the Council satisfied this requirement.(156) However, the conclusion that the Council owes deference to the scientific interpretations and inferences of the fishery agencies and tribes is clearly among the most important results of the case. The Ninth Circuit also concluded that the Council violated the third criterion, requiring the setting of "sound biological objectives" and adopting the "minimum economic cost" alternative only where equally effective biological alternatives exist.(157) Essentially, the court faulted the Council for not being specific enough, discounting the Council's goal of doubling populations, for example, as being a mere policy statement without time deadlines; instead, the court suggested the statute required the kind of specificity contained in fishery agency recommendations concerning water particle travel times, recruits per spawner, smolts per adult return, and adult passage rates.(158) The last criterion(159) the court discussed, improved salmon survival at dams and improved river flows necessary to meet sound biological objectives,(160) requires, according to the court, a "high degree of deference" to the fishery agencies and tribes.(161) Although the court concluded that the Council's failure to explain its rejections of the recommendations from the fishery agencies and tribes precluded a judicial determination of whether the Council satisfied the standard, it noted that "[t]he record evokes in us, however, a strong sense of skepticism; without explanation, the Council rejected the consensus of most fishery managers on the issues of flows and biological objectives in favor of the recommendations of power interests and DSIs."(162) It is not an exaggeration to suggest that by interpreting the Northwest Power Act to require "a high degree of deference" both to the program recommendations of the fishery agency and tribes and to their interpretations of the statute, the Ninth Circuit may have revolutionized Columbia Basin hydroelectric operations. The court seems to have been fully aware of this possibility. Judge Tang concluded: Unfortunately, the record reveals few profound successes resulting from the[] innovations in thinking [contained in the Northwest Power Act]. The Council's approach seems largely to have been from the premise that only small steps are possible, in light of entrenched river user claims of economic hardship. Rather than asserting its role as a regional leader, the Council has assumed the role of a consensus builder, sometimes sacrificing the Act's fish and wildlife goals for what is, in essence, the lowest common denominator acceptable to power interests and DSIs.(163) The "lowest common denominator" is, apparently, no longer acceptable. Coupled with Judge Marsh's rejection of the status quo and his call for a "major overhaul" of system operations,(164) the Ninth Circuit decision signaled that the federal courts would not allow Columbia Basin salmon restoration plans to proceed on an incremental course while salmon populations nosedive.(165) IV. RESPONDING TO THE COURTS: THE COMPETING SALMON RESTORATION PLANS The aforementioned legal battles and the continuing decline of salmon runs and habitat resulted in the promulgation of several new plans to address salmon recovery in the basin. Three competing plans for increasing salmon survival, all released within a one-year period between late 1994 and mid-1996, are discussed below. The chief differences between the plans concerned the emphasis each plan gave to increased flows and/or reservoir drawdowns to improve inriver migration as opposed to out-of-river transport by barge and truck. A. The 1994 Amendments to the Columbia River Basin Fish and Wildlife Program The Council reinitiated the amendment process for its Columbia River Basin Fish and Wildlife Program (the program)(166) in May 1994, receiving recommendations and releasing them for notice and comment on August 16, 1994.(167) Three weeks later, the Ninth Circuit handed down the NRIC decision.(168) As a result, the Council decided to publish the same recommendations for notice and comment, still attempting to meet its self-imposed deadline of December 1994 for amending the program.(169) The Council was able to adhere to this tight time frame because at the time of the NRIC decision, it had all but. concluded a "mainstem hypothesis" rulemaking. This was based on a scientific workshop that attempted to identify areas of agreement and disagreement concerning increased river flows versus barging in terms of salmon survival.(170) The rulemaking gave the Council an important conceptual grounding for proceeding with the 1994 amendments. In particular, it helped commit the Council to apply "adaptive management" principles to the flow versus barging issue; in other words, to "learn by doing."(171) The program measures adopted later in 1994 were designed to test the hypotheses underlying the flow/barging debate. The Council was also able to authorize reservoir drawdowns employing adaptive management principles.(172) Three other Council studies, all initiated pursuant to directives in the Council's 1991 amendments,(173) laid important groundwork for the 1994 amendments. First, a drawdown committee--comprised of representatives of the Council, the fish and wildlife agencies and tribes, and others--monitored the Corps' evaluation of drawdown options.(174) Second, the Snake River water committee--comprised of representatives from the Council, the fish and wildlife agencies and tribes, conservation organizations, and user groups--examined alternatives for securing an additional one million acre-feet of water for Snake River salmon flows from water purchases, efficiency gains, and other nonstructural methods.(175) Third, the Environmental Defense Fund performed a cost-effectiveness evaluation of reservoir drawdowns, nonstructural water alternatives, and new storage projects in terms of increasing flow velocities in the Snake, concluding that water purchases were the most cost-effective option, but that reservoir drawdowns could be expected to provide the biggest benefits in reduced water travel time.(176) These studies informed the Council's judicially imposed duty to re-examine the record and make new findings incorporating the directives of the NRIC court.(177) The Council proceeded to formulate the program recommendations it received into five options(178) and still meet its deadline for amending the program. On December 14, 1994, the Council, by a 6-2 vote,(179) approved amend meets to its program.(180) These amendments called for several significant changes in the Council's approach to restoring salmon runs, increasing juvenile survival rates, and achieving the program's goal of doubling salmon and steelhead runs without the loss of biodiversity.(181) 1. River Flows The most important of the 1994 amendments concerned the Council's adoption of higher flow velocity targets for both the Snake and Columbia Rivers to improve juvenile salmon survival. The Council called for "sliding scale flow/velocity objectives or targets" in the Snake River.(182) Under the Council's program, spring flows would range from a minimum monthly flow average of 85,000 cubic feet per second (cfs) to 140,000 cfs at Lower Granite Dam.(183) Previously, the program called for only a minimum monthly average spring flow of 85,000 cfs at Lower Granite.(184) Under the 1994 amendments, the minimum monthly flow goal for Lower Granite(185) in the summer months would be 50,000 cfs.(186) On the lower Columbia, the amendments called for sliding scale monthly flow targets at The Dalles Dam for a three-year period.(187) Over this three-year "critical period," spring flow targets would range from 300,000 cfs to 260,000 cfs to 220,000 cts.(188) The peak flow goals of 140,000 cfs in the Snake River and 300,000 cts in the Columbia River were the same as the state fishery agencies' 1991 flow proposal, except that those 1991 recommendations were expressed in instantaneous flows and daily averages, instead of the program's monthly flow averages.(189) The Council also adopted specific "integrated rule curves" at Hungry Horse and Libby Dams,(190) employing the rule curves to balance the need for salmon flows with the protection of resident fish and wildlife, as it is required to do under the Northwest Power Act.(191) NMFS was also concerned about the impact of improved flows on resident fish, although that concern may not have been an appropriate factor to consider when promulgating the BiOp.(192) The key to the ambitious flow goals contained in the 1994 amendments was the Council's endorsement of a mainstem passage experiment under which the program authorized both inriver passage and artificial transportation for an interim period, while carefully monitoring and evaluating the results in order to determine which method of passage is superior.(193) For purposes of this experiment, the Council assumed that both increased flow velocities and transportation would increase salmon survival.(194) But in order to conduct the experiment with roughly the same number of fish passing inriver as being transported, the Council anticipated that fewer fish would be transported.(195) Moreover, the Council also assumed that inriver fish passage would benefit from higher flows, endorsing as a working hypothesis the notion that increased flows would produce increased salmon survival.(196) The Council cautioned that increased flows alone would not be enough to increase salmon survival, but that reduced water temperature, control of predation, improved transportation methods, and completion of screen installation at the dams would be necessary as well.(197) 2. Reservoir Drawdowns The chief means to achieve the flow targets adopted by the Council in 1994 was a phased approach to reservoir drawdowns, championed by outgoing Idaho Governor Cecil Andrus.(198) The amendments called for a two-month, twenty-five foot drawdown of Lower Granite reservoir, to an elevation of 710 feet in 1996.(199) In 199, Lower Granite would be drawn down another twenty feet--to near spillway level (an elevation of 690 feet)--for the two-month period; these deeper drawdowns would continue at Lower Granite until 2002.(200) The spillway is the channel or passageway around or over a dam through which excess water is released or "spilled" without passing through the turbines.(201) Thus, a drawdown to near spillway level is a drawdown to a level near this structure. There are an array of possible levels to which a reservoir may be drawn down: the minimum irrigation pool (MIP),(202) the minimum operating pool (MOP),(203) near spillway level, spillway level,(204) and natural river level. The 1994 amendments called for Little Goose reservoir to be drawn down to near spillway level in 1999 for the two-month spring migration period as well.(205) Like the Lower Granite drawdowns, the Little Goose drawdowns would continue until 2002.(206) In 2002, the Council would determine whether to draw down the two remaining lower Snake River projects, Lower Monumental and Ice Harbor Dams, to spillway or natural river levels.(207) To achieve the flow target of 220,000 cfs to 300,000 cfs on the lower Columbia, the amendments called for the John Day reservoir to be operated at near MOP by 1996, and to remain at that level year-round thereafter.(208) Until 1996, John Day would be operated at MIP from May 1 to August 31 of each year.(209) The drawdowns to near MOP beginning in 1996 would be contingent, according to the Council, on "full, prior mitigation of impacts to irrigators and other reservoir users.(210) These mitigation measures could include dredging at the upper end of the John Day reservoir to allow lowering the reservoir below the current MIP.(211) The Council expected that these measures would lead to a lowering of the MIP by 1994.(212) In 2002, John Day would then be lowered to near spillway crest, either 1) from May 1 to August 31 annually or 2) year-round.(213) The effectiveness of reservoir drawdowns as a tool to enhance juvenile survival has long been a matter of contention.(214) In adopting the drawdown proposal, the Council made clear its belief that the best way to analyze the effectiveness of drawdowns was to actually conduct them: [M]any of the positive and negative aspects of drawdown are unsubstantiated. Drawdown is outside the range of conditions of almost all scientific studies relating to mainstem passage. This is because almost all of the studies have been conducted after the hydroelectric system was in place. . . . This allows endless opportunity for speculation on the potential positive and negative aspects, none of which will be know[n] with certainty until drawdown is tried. For example, PNUCC(215) and other utility interests frequently assert that drawdown will have a negative impact by concentrating predators; in other words, the number of predators will stay the same, but the volume of water will decrease under drawdown. With more predators in a smaller volume of water, they contend that predation rates will go up. There is absolutely no empirical evidence to support such a claim. In fact, an at least equally plausible hypothesis is that the drawdown will increase velocities and so decrease the suitable habitat for predators, and thus decrease [juvenile] mortality beyond what would be expected on the basis of water velocity improvements alone.(216) This sentiment reflects adaptive management principles, which the Council has long employed(217) in other aspects of its program, but which it had not applied to the mainstem passage issue until 1994.(218) 3. Spills In addition to increased flow velocity and reservoir drawdowns, the 1994 amendments called for spill to achieve eighty percent fish passage efficiency (FPE) at the mainstem dams.(219) FPE is "the percentage of the total number of fish that pass a dam without passing through the turbine[s]"(220) This eighty percent rate reflects a marked increase in spill efficiency. Previously, the program had recommended only seventy percent FPE for spring migrants and just fifty percent FPE for summer migrants.(221) A spill program at mainstem dams has been in place since December 31, 1988, when, to settle a lawsuit, BPA, fishery agencies, tribes, and utility representatives negotiated a ten-year spill agreement covering Lower Monumental, Ice Harbor, John Day, and The Dalles Dams.(222) The Council adopted the spill agreement in 1989.(223) The Council's 1994 amendments increased the protection provided by the 1988 spill agreement by setting a higher FPE standard for the spills and calling for spill at all Snake River projects, instead of just at the two Snake River dams (Lower Monumental and Ice Harbor) specified in the 1988 agreement.(224) Under the 1994 program, any spill must be consistent with state water quality standards, based on the maximum allowable dissolved gas level.(225) Heavy spill may lead to gas bubble disease in juveniles, although there is considerable disagreement over the effects of dissolved gas on juveniles and the levels at which spill begins to adversely affect them.(226) Thus, the Council's eighty percent FPE standard must be met only within the limits of the applicable state water quality standards for dissolved gases.(227) 4. Water Purchases In addition to improvements in flow velocities and spill levels, the Council authorized the purchase of one million acre-feet (MAF) of water from willing sellers in the Snake River Basin to aid in achieving boosted river flows.(228) This water would be in addition to the Council's 1992 authorization to purchase 427,000 acre-feet to aid in flow improvements,(229) providing a total of 1.427 MAF available to aid migrating juveniles.(230) New purchases would be in increments, with 500,000 acre-feet purchased by 1996, and another 500,000 acre-feet by 1998.(231) 5. Transportation An important change in the 1994 amendments concerned an alteration in the Council's stance toward barging and trucking juvenile salmon around the dams. The Council's mainstem experiment sought roughly the same number of fish passing inriver as being transported, which required a decrease in the number of transported fish.(232) Except for fish transported for study purposes, the amendments called for restricting barging and trucking to "extremely adverse" river conditions.(233) Significantly, fishery agencies and tribes and the Corps would determine if such conditions existed.(234) The amendments anticipated barging fewer than half the juveniles in any given year, unless extremely adverse conditions existed.(235) No transportation would occur at drawdown reservoirs.(236) The amendments also called upon the Corps to improve transportation by upgrading facilities and improving operations.(297) The 1994 amendments represented a significant change in the Council's approach to transportation as a survival device for juvenile salmon. Although the Council concluded that transportation would help improve juvenile survival for the "near term, especially in low water conditions,"(238) it warned that barging "should not be regarded as a substitute for changes in the river ecosystem" or "as a device to delay substantial improvements in inriver survival conditions."(239) However, the Council did call for further study on the efficacy of transportation for improving salmon survival.(240) 6. Hatchery Production For several years, the Council's program has adopted recommendations for hatchery measures, but sought to put them in a context that recognized that the Council's goal is both to increase numbers of fish for harvest and to protect the genetic integrity of the salmon runs.(241) Ensuring biodiversity and conserving genetic diversity of fish species continued as goals of the Council's program in the 1994 amendments.(242) The Council defined biodiversity as "the variety of and variability in living organisms, with respect to genetics."(243) The dilemma in hatchery production, according to the Council, is that "artificial production can have negative effects on wild and naturally spawning salmon populations."244 As a result, the Council adopted a fundamentally different policy toward hatcheries than that which drove fish and wildlife management during most of the twentieth century.(245) As the Council explained, Because of concerns over the basin's salmon carrying capacity, the effects of hatchery-produced fish on those that spawn in streams, and the cost of hatcheries, new salmon production facilities generally should not be constructed unless it is clear that the need for fish cannot be met with existing facilities, or a new facility would be a better way to achieve the program's goals.(246) With this policy in place, the Council approved measures to ensure that hatchery programs are consistent with the basin's carrying capacity,(247) conserve genetic diversity,(248) and are consistent with the needs of wild and naturally spawning populations.(249) The Council also sought to ensure that the systemwide and cumulative effects of hatcheries are better understood,(250) and that proposed new supplementation projects be carefully screened.(251) After this screening process, the Council called for supplementation projects proposed by the tribes to be implemented with careful assessment of biological risk and follow-up monitoring and evaluation.(252) 7. Summary The 1994 amendments to the Council's program represented a bold step forward in the attempt to tangibly change the basin's river operations and halt the rapid decline in salmon populations. However, the enforceability of the program remains unclear.(253) As a result, the most notable provisions of the 1994 amendments, those calling for reservoir drawdowns and increased water purchases to boost Snake River flows, were not implemented by system operators. Soon after the 1994 amendments, NMFS released its 1995 BiOp, a restoration program thought to be enforceable.(254) It was therefore the NMFS BiOp that took center stage in 1996 and thereafter, although salmon advocates alleged that this program also went unenforced in important respects.(255) B. The 1994-98 NMFS Biological Opinion In Idaho Department of Fish and Game v. NMFS, the court called for a "major overhaul" in river operations.(256) In response, NMFS reinitiated an ESA section 7 consultation on 1994-98 operations of the Federal Columbia River Power System (FCRPS), releasing a new BiOp on March 2, 1995.(257) In a noticeable departure from the 1993 BiOp rejected by the court,(258) NMFS concluded that the proposed action, the planned 1994-98 operation of the federal hydropower system, would likely jeopardize the continued existence of the listed salmon stocks(259) unless the federal water managers adopted the recommended "reasonable and prudent alternative," which included immediate, intermediate, and long-term actions to improve main-stem salmon survival(260). These immediate actions included improved bypass, increased spill and flows, and improved operation of the transportation program for juvenile salmon.(261) NMFS also recommended intermediate and long-term actions that would improve the operation and configuration of the FCRPS, such as reservoir drawdowns.(262) In accordance with a federal "spread the risk" policy,(263) however, the 1995 NMFS BiOp relied primarily on a combination of spill and transportation to reduce smolt mortalities.(264) To gather data needed to design future juvenile passage measures, NMFS proposed to use the 1995 migration season as a grand experiment to compare the relative merits of transportation and spill.(265) To allow for in-season adjustments in response to changing river dynamics in implementation of the BiOp, NMFS created a Technical Management Team (TMT) composed of representatives from NMFS, the U.S. Fish and Wildlife Service, the Corps, BPA, and the Bureau of Reclamation (the Bureau).(266) There was no state or tribal representation until May 1996,(267) when NMFS expanded the TMT to include state and tribal representatives.(268) The TMT's duty is to "advise the operating agencies [the Corps and the Bureau] on dam and reservoir operations to optimize passage conditions for juvenile and adult anadromous salmonids."(269) Its recommendations are made by consensus; if no consensus is reached, NMFS makes the final recommendation to the Corps or the Bureau.(270) The NMFS BiOp, unlike the Council's program,(271) was thought to establish a legally binding blueprint for action.(272) Why such a distinction has been drawn is not at all clear. Action agencies like BPA and the Corps, not NMFS, have the ultimate responsibility for satisfying the ESA.(273) These same agencies, not the Council, implement the Northwest Power Act. If the Corps or BPA completely ignored the NMFS BiOp, that would likely constitute an ESA violation, but the Ninth Circuit has ruled that action agencies are not bound by all the details of a BiOp if they take alternative, reasonably adequate measures to ensure the continued existence of listed species.(274) Both the ESA and the Northwest Power Act in effect shift the burden of proof to action agencies to show that they have a convincing reason for not following plans prescribed by NMFS and the Council. However, neither NMFS nor the Council has attempted to enforce either plan in court. Perhaps the real difference in the two statutes is that environmental groups, encouraged by the ESA's citizen suit provision,(275) have been willing to test the adequacy of BiOps in court.(276) Although the Northwest Power Act has no citizen suit provision, it does authorize judicial review under the Administrative Procedure Act.(277) The Ninth Circuit recognized a citizen suit in the NRIC case.(278) Consequently, enforcing the provisions of the Council's program would seem to be little different from enforcing the measures in a BiOp: a citizen would have to show that an action agency lacked a convincing reason for failing to implement the program.(279) However, citizens have yet to attempt to enforce the Council's program in this manner, and questions about its enforceability allowed the NMFS BiOp to supplant the 1994 amendments to the Council's program as the focus of Columbia Basin salmon restoration efforts. 1. River Flows The new BiOp contained several immediate actions to improve salmon survival. NMFS called for improved flows in the Snake and Columbia Rivers, setting spring flow targets of 86,000 to 100,000 cfs in the Snake River at Lower Granite Dam and 220,000 to 260,000 cfs in the lower Columbia at McNary Dam.(280) Summer flow targets were set at 60,000 to 56,000 cfs in the Snake and 200,000 cfs in the Columbia.(281) These flow targets were lower, in terms of peak flows, than those contained in the Council's program, which called for spring flow targets of 85,000 to 140,000 cfs in the Snake and 220,000 to 300,000 cfs in the Columbia.(282) However, the flow targets were somewhat higher than targets in previous NMFS BiOps, which had called for spring flows of 86,000 cfs in the Snake and 200,000 cfs in the Columbia, and summer flows of 50,000 cfs in the Snake and 160,000 cfs in the Columbia.(283) Unlike the Council's program, the new BiOp set "interim limits" for the elevation of certain reservoirs in the FCRPS.(284) These limits were created in response to NMFS's concern over the effect of flow improvement measures on resident fish--a concern arguably beyond the scope of a BiOp.(285) Nonetheless, NMFS contended that the flow targets would increase both 1) the priority for fish flows relative to power production,(286) and 23 the chance that flow targets would actually be met.(287) 2. Reservoir Drawdowns The NMFS BiOp differed most from the Council's program by refusing to commit to Snake River reservoir drawdowns. Instead, NMFS directed the Corps to conduct a drawdown feasibility study, postponing a decision as to whether to proceed with drawdowns until 1999.(288) In the Snake River, the BiOp did call for the lower Snake River projects immediately to be operated within one foot of MOP, from April 10 until adult fall chinook begin entering the Snake in late August.(289) NMFS expected this partial drawdown to result in faster migration for juveniles.(290) The only commitment to drawdowns in the BiOp similar to the Council's recommendations concerned drawing down the John Day reservoir to near MOP by 1996.(291) However, under the NMFS BiOp any other reservoir drawdowns would first require a process of detailed evaluations and subsequent decisions.(292) The BiOp directed the Corps to develop an "interim evaluation report" by mid-1996 on NMFS's three alternatives for the lower Snake River projects: 1) a natural river level drawdown, 2) a spillway crest drawdown, or 3) the improvement or construction of surface collectors.(293) NMFS anticipated the completion of engineering and design work for the chosen alternatives would be completed by December 1998.(294) NMFS believed that the NEPA process and a "quest for congressional authorization" for any drawdown proposal could not be completed until 2000.(295) The NMFS BiOp also assumed that not until late 1999 would there be sufficient information to pick from the "two primary choices" for Snake River projects: surface collectors or drawdowns.(296) The chosen alternative would then be implemented in 2000.(297) NMFS's willingness to delay recommending action in the BiOp ignored a concern expressed by the Council(298) and others that salmon may be "studied to death"(299) before undertaking effective action to improve survival. The Council, relying on the "best available scientific information," determined that the imperiled status of the salmon required immediate action.(300) NMFS, which must also rely on the best available scientific information,(301) did not seem to share the Council's sense of urgency, despite its conclusion that drawdowns were one of the most significant aspects of its BiOp.(302) NMFS assumed that the information gathered during the four-year delay would "help answer the question of the level of mortality imposed on listed Snake River salmon by the FCRPS."(303) The BiOp listed drawdown measures under the title of "Immediate Research, Evaluation and Engineering Studies to Improve Survivals in the Intermediate and Long Term."(304) This epitomizes the distinction between NMFS's willingness to delay action on reservoir drawdowns and the Council's call for "immediate action"(305)--not merely immediate research--to lower the reservoirs. 3. Spills NMFS also called for more spill to increase juvenile salmon survival,(306) concluding that spill was the safest passage route at dams.(307) NMFS directed water managers to spill at all projects during the spring, including projects used to collect juveniles for transportation.(308) However, NMFS limited spill to benefit spring and summer chinook in the Snake River to high flow conditions, and called for maximum transportation during low flow conditions.(309) NMFS hoped to accomplish this purpose by establishing "spill triggers" in the BiOp--minimum flows at Snake River dams below which no spill can occur without TMT authorization.(310) In the summer, during the juvenile fall chinook migration, NMFS required spill only at noncollector projects.(311) Like the Council's program,(312) the NMFS BiOp required spill to meet eighty percent FPE.(313) NMFS determined that increased transportation, not spill, was the best solution for improved survival during low flow conditions.(314) As in the Council's program,(315) the eighty percent FPE level could be limited by high gas levels.(316) The BiOp did reduce the somewhat arbitrary nature of the Snake River spill triggers by allowing the TMT discretion to order spill when flows at Lower Granite did not reach the spill triggers.(317) 4. Water Purchases The NMFS BiOp, like the Council's program,(318) called for the purchase of additional water to aid in achieving flow targets on the Snake River. NMFS directed the Bureau to continue to provide the 427,000 acre-feet of water called for in the Council's program.(319) But whereas the Council called for the purchase of an additional million acre-feet of water,(320) NMFS merely called for the Bureau to "secure an additional amount of water . . . as may be necessary to further reduce human-caused mortality of endangered salmon in the Snake River."(321) The Bureau and the state of Idaho apparently convinced NMFS that it would be unrealistic to expect that additional water could be purchased without condemnation authority.(322) 5. Transportation Although it endorsed both spill and transportation, the NMFS BiOp relied on transportation under most river flows, relegating spill only to unusually high flow conditions in the Snake River. During the spring and summer juvenile passage seasons,(323) the BiOp called for spill necessary to achieve eighty percent FPE.(324) However, as previously mentioned, at Snake River dams NMFS limited the eighty percent requirement to high flow conditions, such as 100,000 cfs at Lower Granite Dam.(325) When flows fell short of such "spill triggers,"(326) the BiOp called for maximum possible transportation, thus increasing the proportion of fish that were transported in low Snake River flow conditions. Unlike the Council, NMFS assumed that the continued transportation of juvenile salmon would prove beneficial,(327) concluding that "it is appropriate to continue to rely on transportation as a major means to mitigate the adverse impacts of the FCRPS."(328) In fact, NMFS itself admitted that the BiOp "relies primarily on transportation of smolts."(329) The BiOp called for all fish collected at the lower Snake River collector projects(330) to be transported, unless otherwise directed by the TMT.(331) This is in stark contrast to the Council's recommendation that transportation occur only during "extremely adverse" conditions.(332) NMFS predicted that about seventy-four percent of spring and summer chinook juveniles arriving at Lower Granite would be transported if flows exceeded 85,000 cfs.(333) Even when flows exceed 100,000 cfs, NMFS anticipated that fifty-six percent of the juveniles would be transported.(334) These figures reflected NMFS's significantly greater faith in the efficacy of transportation than that expressed in the Council's program, under which fewer than one-half of juvenile salmon would be transported in any year.(335) The NMFS BiOp adopted somewhat of a "two rivers approach," calling for transportation primarily on the Snake River and employing inriver migration (with increased flows and spill) on the Columbia. This approach assumes that it makes little sense to increase any flows in the Snake River if most smolts will be collected and removed from the river.(336) In essence, the NMFS BiOp endorsed a long-term "spread the risk" approach, a change from the Council's 1994 Program, which endorsed a "spread the risk" approach "only as an interim strategy."(337) 6. NMFS's Recovery Plan and BPA's System Operation Review In the future, the NMFS Recovery Plan and BPA's System Operation Review (SOR) could also influence the operation of the FCRPS. The recovery plan, required by the ESA to help remove listed salmon species from their endangered status,(338) has yet to be finalized.(339) The SOR is, in effect, BPA's attempt to comply with NEPA by writing an environmental impact statement on system operation.(340) The SOR process began in 1990, with a final EIS released in November 1995.(341) Unsurprisingly, the SOR closely mirrored the 1995 NMFS BiOp.(342) During the draft stages of the SOR process, BPA noted that the NMFS Recovery Plan would "guide all aspects of salmon restoration and recovery, including the role transportation will play."(343) The role of the Council's program seems less certain, especially since federal dam operators apparently believe they are not bound to follow it.(344) Thus, by 1995 the NMFS BiOp appeared to be the guiding salmon recovery plan and the chief regulator of the operation of the basin's federal hydropower system. These facts are troubling since, when compared to the Council's 1994 amendments, the NMFS BiOp both 1) called for less ambitious measures to improve inriver conditions for migrating juveniles, and 2) delayed implementation of some of those measures, such as reservoir drawdowns, for several years.(345) In addition, according to NMFS, the chances of the listed salmon species reaching recovery levels was, at best, less than eighty percent and could take anywhere between twenty-four to one hundred years to achieve.(346) Worse, many measures in the NMFS BiOp were not implemented in 1995.(347) C. The Tribal Anadromous Fish Restoration Plan On June 15, 1995, the tribes of the Nez Perce, Umatilla, Warm Springs, and Yakama reservations released their Columbia River Anadromous Fish Restoration Plan (the tribal plan).(348) The overriding approach to the tribal plan for restoring salmon populations was simple: put the fish back in the river and keep them there.(349) The tribal plan's objective was to restore all populations of anadromous fish, including the salmon, the pacific lamprey, and the white sturgeon.(350) Thus, the scope of the tribal plan, like the Council's program,(351) was broader than the NMFS BiOp.(352) Also, like the Council's program,(353) the tribal plan included particular hatchery plans for subbasins in the Columbia River Basin.(354) The tribal plan listed four specific goals: 1) restore anadromous fish to the rivers and streams of the Columbia River Basin, 2) emphasize restoration strategies that rely on natural production and healthy river systems, 3) protect tribal sovereignty and treaty rights, and 4) reclaim the anadromous fish resource for future generations.(356) The tribal plan adopted two objectives to achieve the above goals concerning salmon: 1) halt the decline in salmon populations within seven years, and 2) increase adult salmon returns above Bonneville Dam to four million within twenty-five years.(356) The tribal plan recommended a series of short-term and long-term measures for improving juvenile passage and survival, such as imposing river flow targets and drawing down reservoirs.(357) 1. River Flows The tribal plan recommended short-term increased flows in both the Snake and Columbia Rivers. On the Snake River, unlike the Council's program or the NMFS BiOp, the tribal plan did not set flow targets based on cubic feet per second. Apparently, the tribes felt it was unrealistic to set flow targets on the Snake River because of restrictions on Dworshak Reservoir and the lack of water in the basin.(358) Instead, the tribal plan recommended that a particular quantity of water, measured in acre-feet, be set aside for flow augmentation to aid salmon migration in the Snake River. One to three MAF of water would be made available on the upper Snake River, 450,000 acre-feet from Brownlee Reservoir, 1.5 MAF from Dworshak Reservoir in the spring, and one MAF from Dworshak in the summer.(359) The tribal plan recommended that these volumes of water be managed by the state and federal fishery agencies and the tribes.(360) The tribes felt it important to balance river flows more evenly between spring and summer migrants, which helps to explain the differences between the tribal plan, the Council's program, and the NMFS BiOp in their approach to managing the Snake River.(361) On the Columbia River, the tribal plan did call for flow targets. The plan's short-term recommendation consisted of the same flow targets at The Dalles Dam as those in the Council's program. Spring flow targets would range from 300,000 to 260,000 to 220,000 cfs.(362) The tribal plan also adopted a long-term goal of achieving "mean historical flows" during the juvenile migration period.(363) The plan defined "historical flows" as "those flows that would have existed prior to water resources development, including flows that would have occurred in the absence of irrigation depletions."(364) Daily and hourly fluctuations in flows due to power peaking would also be reduced in the long term under the tribal plan.(365) 2. Reservoir Drawdowns To aid in achieving these flow targets, the tribal plan called for both short-term and long-term reservoir drawdowns. The plan eschewed the seasonal drawdowns recommended by the Council's program and contemplated under the NMFS BiOp, stating that reservoir drawdowns should be implemented on a permanent basis for ecosystem considerations.(366) In the short term, the tribal plan recommended that Lower Granite be drawn down to 710 feet in 1996.(367) The Council's program made the same recommendation, albeit for 1995 instead of 1996, and for only two months instead of year-round.(368) Under the tribal plan, the three remaining Snake River projects--Little Goose, Lower Monumental, and Ice Harbor dams- would be operated at MOP from April 15 to October 31.(369) On the Columbia River, John Day Reservoir would be drawn down to MOP in 1996.(370) This recommendation was similar to measures contained in both the Council's program(371) and the NMFS BiOp.(372) The tribal plan also recommended a long-term drawdown measure, consisting of one of three alternatives: 1) John Day and Ice Harbor drawn down to natural river level, 2) John Day drawn down to spillway crest level and Ice Harbor and Lower Monumental drawn down to natural river level, or 3) John Day and all four Snake River projects drawn down to natural river level.(373) The tribal plan expected survival rates for juvenile salmon originating above Lower Granite to increase by up to four times the recent survival rates if one of the long-term drawdown measures were implemented.(374) 3. spills Like the Council's program(375) and the NMFS BiOp,(376) the tribal plan recommended spill to achieve eighty percent FPE in the short-term.(377) However, for the long-term, spill would be increased to achieve ninety percent FPE,(378) the most ambitious FPE recommendation of the three plans. As under the Council's program(379) and the NMFS BiOp,(380) the FPE level could be limited by high gas levels, but the tribes would set a higher ceiling for dissolved gas than under the NMFS BiOp.(381) 4. Transportation Like the Council's program,(382) the tribal plan recommended that transportation of juvenile salmon no longer be recognized as part of "a long-term salmon recovery program."(383) The tribes concluded that halting transportation of juveniles would allow for testing of alternative passage measures which are foreclosed when transportation occurs.(384) The tribal plan recommended the discontinuation of transportation altogether,(385) the most drastic change in current transportation operations called for by any of the three plans. This recommendation is consistent with the tribal plan's goal of putting fish back in the river.(386) The similarity between the Council's program and the tribal plan on the transportation issue is not surprising, since the Council relied heavily on tribal and state fishery agency recommendations when it called for restricting transportation in its program (387) 5. Hatchery Production The tribal plan recommended the use of hatcheries to "supplement" declining fish populations,(388) concluding that supplementation is "an appropriate tool for use with [fish] populations that are fragmented and declining, and where other remedial actions cannot be implemented quickly enough or on a scale that is large enough to halt further population losses."(389) The tribal plan stated that hatcheries should simulate natural conditions to ensure that natural and hatchery fish groups would be managed as one gene pool,(390) with a goal of reestablishing naturally spawning salmon runs, instead of continuing current hatchery operations which employ "rearing and release methods."(391) The tribal plan outlined hatchery goals and recommended hatchery actions for each subbasin above Bonneville Dam.(392) Hatcheries would also be used in achieving another goal of the tribal plan: to reintroduce salmon to many areas from which they have been extirpated.(393) The tribal plan took a different view of supplementation than the Council's program, which recognized the illegitimate biological concerns" of using artificial propagation.(394) In contrast, the tribal plan concluded that supplementation is "an indispensable part of any restoration plan,"(395) asserting that genetic concerns could be accounted for and declaring that "the increasing likelihood of species extirpation is in fact the far greater genetic risk"(396) 6. Summary The tribal plan does not legally bind federal dam operators in any way. But this did not stop the tribes from lambasting the past actions of NMFS and recommending a new course for the agency to follow. The plan attacked NMFS's failure "to articulate a clear jeopardy standard" and its failure "to give due weight" to the tribes' and state fishery agencies' recommendations and survival planning.(397) The tribal plan also compared the expected results from its recommendations and those from NMFS's proposed recovery plan.(398) This comparison revealed that NMFS's proposed scenarios failed to meet survival and recovery standards for listed Snake River spring and fall chinook,(399) while the tribal plan's measures would achieve survival and recovery for both species.(400) The tribal plan even questioned whether NMFS should have an active role in Columbia Basin salmon restoration efforts. The tribes doubted whether historically NMFS has played a "constructive role" in the recovery of upriver salmon stocks,(401) charging that NMFS had compromised its integrity on hatchery and hydrosystem operations issues.(402) D. Comparing the Three Salmon Restoration Plans The three proposed plans' different approaches to improving juvenile survival rates, and the ambitiousness of those approaches, were reflected in their goals. Both the Council's program and the tribal plan were more ambitious than the NMFS BiOp, particularly in their willingness to call for immediate reservoir drawdowns. In terms of restoring salmon populations, the tribal plan was the most aggressive, since only that plan had a goal of restoring fish populations to historic levels.(403) The goal of the Council's program was to double salmon runs without the loss of biological diversity,(404) while the goal of the NMFS BiOp was merely to ensure that employment of a "reasonable and prudent alternative" to the current operation of the hydrosystem would not jeopardize the continued existence of the three endangered salmon species in the Snake River Basin.(405) In addition to differences in overall goals, the plans took significantly different approaches to the details of improving survival rates, such as river flows, drawdowns, spills, and transportation. 1. River Flows All three plans called for river flow improvements, but differed on the methods and quantities. The Council's program and the NMFS BiOp called for similar river flow improvements in the Snake River for spring migrants, but the Council recommended a higher monthly average peak flow at Lower Granite (140,000 cfs)(406) than NMFS (100,000 cfs).(407) The tribal plan eschewed setting flow targets and instead earmarked amounts of storage water to be set aside for flow improvements.(408) The Council and tribes called for the same increased flows in the Columbia River, which were slightly higher than those in the BiOp.(409) In addition, the tribal plan(410) and the Council's program(411) strongly endorsed the "watershed," or subbasin, approach to managing flows, while the BiOp did not. The three plans also differed on the question of how to obtain water for flow improvements, and how much to obtain. The Council called for the purchase of 1.427 MAF of water to aid in boosting flows in the Snake River.(412) NMFS called for just 427,000 acre-feet of water and gave a hazy directive to the Bureau to secure additional amounts.(413) The tribes did not call for "water purchases," but instead recommended that federal water managers set aside roughly four to six MAF of water that the tribes would help shape to produce river flows for migrating juveniles in the Snake Basin.(414) 2. Reservoir Drawdowns and Spills The Council's program and the tribal plan both took more agressive approaches to the issue of reservoir drawdowns than NMFS's BiOp. Both the Council and the tribes called for drawdowns on the Snake River by 1996 at the latest.(415) NMFS, on the other hand, decided to operate the four Snake River dams within one foot of MOP and delayed any further drawdown decisions until 1999.(416) All three plans recommended the immediate drawdown of the John Day Reservoir on the Columbia River.(417) Both the Council and the tribes expected long-term drawdowns to occur in the future, but the Council envisioned only seasonal drawdowns, while the tribes called for permanent drawdowns.(418) In contrast, NMFS contemplated a long-term scenario in which federal water managers would choose from three alternatives for the long-term solution to increasing juvenile survival; either drawdowns, new or improved collection devices to increase transportation, or a combination of both would be chosen by late 1999.(419) The primary difference between the proposals with regard to spill lay in the numbers. NMFS and the Council called for spill at dams to achieve eighty percent FPE,(420) while the tribes set a higher standard of ninety percent FPE.(421) In each plan spill would be limited, if necessary, by high gas levels to avoid potential gas bubble trauma in juvenile salmon.(422) 3. Transportation The Council and the tribes both concluded that transportation should not be relied on as the primary method of improving juvenile survival, while NMFS continued to promote transportation. The Council's program limited transportation to "extremely adverse conditions," estimating that less than half of juveniles would be transported in any year absent extremely adverse conditions.(423) While concluding that transportation would help to improve juvenile survival for the short term, the Council warned that barging should not be used as a "substitute" for effecting changes in the river ecosystem or as "a device to delay substantial improvements" in inriver juvenile survival.(424) The tribes, in contrast, asserted that barging should be completely eliminated.(425) Both the tribes and the Council concluded that a reduction in (or elimination of) barging would aid in determining whether other inriver methods of juvenile passage could be effective in restoring salmon populations.(426) On the other hand, NMFS relied primarily on transportation,(427) estimating that anywhere from fifty-six percent to seventy-four percent of juveniles would be barged around the dams.(428) NMFS contended that continued transportation would prove beneficial to the basin's juvenile salmon.(429) In the short run, the NMFS BiOp became the mechanism driving the operation of the federal hydropower system in the Columbia and Snake River basins.(430) Unfortunately, in 1995, the federal dam operators were not able to meet even the more modest measures contained in the NMFS BiOp, as explained in the following Part. V. FAILING TO IMPLEMENT THE NMFS BIOLOGICAL Opinion IN 1995 Although the 1995 NMFS "jeopardy" BiOp apparently represented a turnaround from the preceding "no jeopardy" BiOps, the "major overhaul" called for by Judge Marsh(431) was meant to take place in actual river operations, not merely in agency documents. The revised 1995 BiOp may have satisfied the court's admonition for a major overhaul on paper. However, implementation fell far short of that promise in 1995.(432) As discussed earlier,(433) the 1995 BiOp called for increased salmon protection measures as compared to the 1993 BiOp. And unlike the Council's program, whose mainstem passage provisions have been largely ignored by federal water managers,(434) the 1995 BiOp is a salmon recovery plan with some apparent legal force.(435) However, the real test of whether federal management agencies have changed the status quo comes not from the formulation of a plan, but in its implementation. This Part shows how the federal water managers failed to comply with the NMFS BiOp in 1995. NMFS's reasonable and prudent alternative called for changes in river operations in three key areas: 1) instream flows, 2) spill, and 3) reservoir drawdowns. Each topic is addressed in turn. A. Flow Augmentation Measures The NMFS BiOp set spring and summer flow targets for both the Snake and Columbia Rivers. However, these flow targets were phrased in terms of seasonal averages. This leaves much more discretion in the timing of flows to the implementing agencies and the Technical Management Team (TMT) than if the flow targets were expressed in weekly averages or instantaneous minimum flows, as in the 1991 flow proposals of the Columbia Basin Fish and Wildlife Authority.(436) Nevertheless, NMFS set the BiOp target flows based on "low estimate[s] of the flow that [are] likely to avoid high mortality."(437) However, NMFS failed to clearly establish priorities between flows and other potentially conflicting measures, such as reservoir elevations and drawdowns. Further, the BiOp gave priority to limiting gas saturation levels, which hampered implementation of measures designed to benefit migrating salmon like spill and flow increases.(438) River operations met three of the seasonal flow targets, but failed to meet the summer flow target for the lower Columbia, despite a good water year in 1995.(439) Moreover, the dissolved gas limits placed a major constraint on optimally timing flows for fish passage. 1. Spring Flows in the Snake The NMFS BiOp specified a seasonal average spring flow target of 85,000 to 100,000 cfs at Lower Granite Dam from April 10 to June 20.(440) Based on pre-season runoff forecasts,(441) a 1995 flow target of 95,000 cfs resulted.(442) Actual flows exceeded this target by achieving a seasonal average of 101,000 cfs.(443) However, most smolt migration occurred during below-target flows. For example, although juvenile chinook migration peaked in early May, flows peaked a month later.(444) During the week of April 28 to May 4, flows at Lower Granite averaged only 85,000 cfs.(445) This was more than ten percent below the target NMFS found necessary to avoid jeopardy, yet during this period an average of more than 300,000 smolts arrived daily at Lower Granite, with a record 910,000 smolts on May 2 alone.(446) Nevertheless, in early May, the Corps denied a request from fishery agencies and tribes to increase flows, citing dissolved gas constraints.(447) Flows at Lower Granite peaked during the week of June 2 to June 8, with a weekly average of 138,500 cfs.(448) Unfortunately, daily smolt passage during this period averaged under 30,000 fish, less than ten percent of a month earlier, and dropped significantly toward the week's end.(449) Thus, the high flows benefitted relatively few fish. 2. Spring Flows in the Columbia The BiOp called for flows at McNary Dam of between 220,000 and 260,000 cfs from April 20 to June 30, depending on runoff forecasts.(450) This produced a flow target of 249,000 cfs.(451) Contrary to early flow projections, the 1995 seasonal average, 253,000 cfs, exceeded the target.(452) But, as with spring flows on the Snake, many smolts passed McNary Dam during below-target flows. In general, flows gradually increased throughout the spring season, while smolt migration at McNary peaked in mid-May.(453) Between April 20 and May 5, when most Snake River chinook smolts began arriving in the lower Columbia, flows averaged 201,500 cfs.(454) This was just eighty percent of the target flows, despite available water in storage.(455) By June 16, seasonal flows at McNary were still below the target, averaging only 243,300 cfs.(456) During the peak of the migration season in mid-May, flows fluctuated both above and below the 249,000 cfs target.(457) High flows throughout June, a period with relatively insignificant smolt passage numbers, brought the seasonal average above the 249,000 cfs target.(458) As with Snake spring flows, the seasonal average was exceeded, but much of the above-target flows occurred in times of low smolt passage. 3. Summer Flows in the Snake The NMFS BiOp called for flows of 50,000 to 55,000 cfs at Lower Granite from June 21 to August 31, based on the runoff forecast.(459) A target of 52,000 cfs resulted.(460) In 1995, the summer flow average, 55,300 cfs, managed to exceed the target.(461) However, flows in August averaged only 37,000 cfs(462) As with Snake spring flows, summer flows failed to coincide with smolt migration. In general, higher flows occurred early in the summer flow season and steadily dropped throughout the period, dipping permanently below the target in mid-July.(463) Smolt passage, on the other hand, peaked in mid-June through early August.(464) The high Snake flows in early summer, a period with less smolt migration, resulted in the above-target seasonal average,(465) but most smolt passage occurred during flows that were below target levels.(466) Like spring flows, declining Snake River summer flows resulted in part from constraints on the Dworshak Reservoir that the Corps deemed necessary to keep dissolved gas standards below state water quality standards.(467) Water shortage apparently played no role, as reduced Dworshak outflows left more water in the reservoir at the end of August than called for by the NMFS BiOp.(468) 4. Summer Flows in the Columbia From July 1 to August 31, the NMFS BiOp called for 200,000 cfs at McNary.(469) Summer flows fell short of the target, however, yielding a seasonal average of only 164,700 cfs.(470) This was about eighteen percent below the target, which was NMFS's "low estimate of flow that is likely to avoid high mortality."(471) August flows averaged just 138,000 cfs,(472) over thirty percent below the target. However, unlike the Snake, the highest summer flows in the Columbia did roughly coincide with the periods of heaviest smolt passage.(473) Both flows and smolt passage peaked in early July.(474) Ironically, although summer flows in the lower Columbia failed to meet the flow target, high flows appeared to best match migrating smolts. As discussed in the following subpart, failure to operate Columbia River storage projects as called for by the BiOp likely contributed to the nonattainment of the summer flow target. 5. Water Supplies for Fish Flows To provide the water necessary to achieve in-season target fish flows, NMFS's BiOp required changed operations before and during the smolt migration seasons at upper Snake and Columbia River storage projects.(475) Through these changes, NMFS intended to reprioritize storage reservoir operations, replacing hydropower operations with fish flows as the dominant purpose.(476) However, federal water managers generally failed to operate storage reservoirs consistently with the BiOp, resulting in less water for salmon flows rather than more. a. Water from the Upper Columbia Reservoirs At the upper Columbia storage projects, the BiOp established two sets of constraints.(477) First, to store the needed water, the BiOp directed the TMT and federal water managers to operate upper Columbia storage projects through the fall and winter months so that they would be full by June 30, 1995, while still releasing the water needed to meet spring flow targets.(478) If the federal water managers complied with this provision, NMFS calculated that the likelihood of meeting Columbia flow targets would increase over the previous BiOp by twenty-five percent in the spring and ninety percent in the summer.(479) Second, NMFS specified minimum reservoir elevation levels, or "draft limits" for Grand Coulee, Libby, and Hungry Horse reservoirs on August 31, 1995.(480) This second set of constraints responded to concerns about resident fish in reservoirs, a concern arguably beyond the scope of a BiOp.(481) Nevertheless, these constraints limited the amount of water available to achieve targeted fish flows, while leaving water in storage for summer recreation and power production in the fall and winter.(482) Astonishingly, a NMFS study concluded that under the reservoir limits the flow targets would not be met between forty and one hundred percent of the time, depending on the runoff and time of year.(483) Taken together, both sets of reservoir constraints specified the amount of storage water available for fish flows. To achieve summer flow targets, NMFS apparently intended for the TMT and federal water managers to begin the summer flow season with full storage reservoirs and to draft them throughout the summer, down to the minimum levels set in the BiOp, if necessary.(484) However, the federal water managers did not in fact use the available reservoir storage to store water for fish flows, thereby contributing to the failure to meet the Columbia summer flow target. Even if the managers adhered to the reservoir operation measures specified in the BiOp, there was little chance of achieving the target flows NMFS found necessary to avoid high salmon mortality.(485) On June 30, 1995, none of the three Columbia storage projects were operating at specified capacity.(486) By August 31, the end of the summer flow season, federal water managers had drafted none of the three reservoirs to the draft limits called for by NMFS.(487) In fact, water elevations actually increased at two of the three upper Columbia storage projects during the migration season.(488) The water managers did not base their refusal to release water from upper Columbia projects on dissolved gas concerns, as they did on the Snake.(489) Instead, mid-season decisions made by the federal agencies affecting operations at the upper Columbia storage reservoirs were driven by nonsalmon concerns. At Libby and Hungry Horse, low releases resulted from last-minute agreements with the state of Montana.(490) That state, supported by Senator Max Baucus (D-Mont.), expressed concern about the adverse effects on recreation and resident fish and wildlife that would ensue due to deep reservoir drafts, and threatened legal action if releases at Libby exceeded 16,000 cfs.(491) At Libby, a water exchange agreement between BPA and BC Hydro had kept reservoir drafts to 8000 cfs, but that agreement was to expire on August 7.(492) Without additional water from Canada, the NMFS BiOp required drafts of 20,000 cfs at Libby to meet the Columbia summer flow target.(493) On August 5, 1995, despite the BiOp's summer flow target, NMFS acquiesced to Montana's demands(494) and agreed to limit Libby drafts to 16,000 cfs until August 15; and after that, to release only inflow for the rest of the migration season--approximately 9000 cfs.(495) At Hungry Horse, NMFS agreed to delay any releases until a selective withdraw system was in place, a system that would draw water from high in the reservoir and thus prevent over-cooling downstream.(496) As a result of these agreements with Montana, flow augmentation in the Columbia terminated on August 15, two weeks early.(497) Yet both Libby and Hungry Horse ended the migration season with significant amounts of water in excess of the draft limits set by NMFS.(498) At Grand Coulee, BPA implemented a two-foot operating range instead of maintaining an elevation of 1280 feet as specified in the BiOp. The unavailability of water from the upper Columbia reservoirs contributed to the failure to meet the summer Columbia flow target.(499) b. Water from the Snake Reservoirs On the Snake River, Dworshak and Brownlee reservoirs served as the primary sources of water for fish flows. For Dworshak, the BiOp included both elevation guidelines and a limit on outflows after September 1.(500) By limiting fall and winter outflows, NMFS apparently intended Dworshak to fill during this period. Like the upper Columbia reservoirs, Dworshak was to provide fish flows through operations consistent with specified fill and draft limits.(501) At Brownlee, operated by the Idaho Power Company, NMFS specified a series of draft levels and operations, subject to TMT modification if necessary to meet target flows.(502) But a July 1995 agreement between Idaho Power and BPA restricted releases from Brownlee in order to allow refill of Brownlee reservoir by June 30, an agreement that environmentalists claimed was inconsistent with the NMFS BiOp.(503) At Dworshak, dissolved gas concerns substantially limited storage releases designed to meet target-level flows.(504) The Corps reduced Dworshak outflows whenever necessary to reduce spill at downriver projects, in a largely unsuccessful attempt to avoid violations of state water quality standards for nitrogen supersaturation. As with spill operations, discussed below, dissolved gas concerns placed a major constraint on Dworshak releases for flow augmentation. Ice Harbor, a Corps-operated dam, proved particularly troublesome for Snake River operations. Due to equipment failure throughout 1995, Ice Harbor frequently experienced the outage of two or more power turbines, reducing the amount of water that could be passed through the dam's powerhouse and consequently increasing the amount that had to be spilled.(505) The outages at Ice Harbor led to uncontrolled spill and frequent violations of state water quality standards for nitrogen supersaturation.(506) The Corps responded by substantially altering operations throughout the Snake River, in the process sacrificing many measures designed to benefit endangered salmon.(507) For example, the Corps dramatically reduced releases from Dworshak throughout May.(508) Despite the reduced salmon flows, these efforts proved largely unsuccessful in curtailing nitrogen levels.(509) Dissolved gas concerns left Dworshak with an elevation of 1530.9 feet on August 31, 1995, ten feet above the draft limit level specified in the BiOp.(510) Thus, a good deal of the failure to consistently maintain target flows and shape flows to smolt migration in the Snake River can be attributed to this conflict with state water quality standards. Operations at Brownlee differed from the operations specified in the BiOp, perhaps as a result of reliance on supplies of water from other sources during the spring migration season.(511) The reservoir filled throughout May(512) and remained full throughout June and July, passing only inflow.(513) In late July and early August, Brownlee provided flow augmentation of 18,000 to 20,000 cfs.(514) To enhance water supplies available for Snake River flows, the BiOp required the Bureau to purchase water from upper Snake River reservoirs.(515) NMFS directed the Bureau to "continue to provide" 427,000 acrefeet and to take steps to acquire an unstated amount of additional water.(516) Although NMFS considered this additional water "essential" for listed species in low flow years, NMFS opined that it would not be "realistic" for the Bureau to provide this water in the near future,(517) a judgment that had nothing to do with science and everything to do with what NMFS believed was politically feasible.(518) In obtaining this "essential" water, the BiOp required the Bureau to comply with applicable state law and to purchase water only from willing sellers.(519) Environmentalists faulted NMFS for failing to enter into ESA consultation with the Bureau regarding the effects of the operation of the Bureau's storage projects in the upper Snake Basin.(520) The Bureau complied with the 1995 BiOp requirement of providing 427,000 acre-feet during July and August.(521) Water provisions took the form of rentals and purchases.(522) However, the Bureau appeared to make no progress in securing additional water in 1995.(523) In 1995, federal water managers satisfied three of four seasonal average flow targets, but August flows in both the Columbia and Snake Rivers fell far short of the flow targets. Further, target flows often failed to coincide with the heaviest periods of smolt migration. Although operations clearly failed to comply with the BiOp, flows in 1995 generally exceeded those of the two previous years.(524) B. Spill Measures Although it endorsed both spill and transportation, the NMFS BiOp relied on transportation under most river flows, relegating spill only to unusually high flow conditions in the Snake River. During the spring and summer juvenile passage seasons,(525) the BiOp called for spill necessary to achieve eighty percent FPE,(526) the proportion of fish that avoid passage through turbines.(527) However, at Snake River dams NMFS limited the eighty percent FPE requirement to high flow conditions, such as 100,000 cfs at Lower Granite Dam. When flows fall short of such "spill triggers,"(528) the BiOp called for maximum possible transportation, thus increasing the proportion of fish that are transported in low Snake flow conditions. Perhaps most significantly, the BiOp also limited spill to avoid high levels of dissolved nitrogen,(529) the condition that may lead to juvenile salmon mortalities caused by gas bubble trauma.(530) However, the BiOp attempted to reduce the somewhat arbitrary nature of the Snake River spill triggers by giving the TMT discretion to order spill when flows at Lower Granite did not reach the spill triggers.(531) Implementation of the BiOp's spill requirement in 1995 was a dismal failure. Federal water managers achieved the required eighty percent FPE(532) consistently at only one dam, Ice Harbor, and there only because of uncontrolled spill caused by the outage of two turbines.(533) Only three dams--The Dalles, McNary, and Ice Harbor--even momentarily achieved eighty percent FPE.(534) The highest overall FPE on a Snake River dam was just sixty-six percent.(535) With NMFS's concurrence, spill was reduced at four dams on the lower Snake and Columbia on August 23 due to cost concerns, despite the fact that salmon were still migrating.(536) The Snake River spill triggers proved to be unworkable. Record numbers of migrating smolts arrived at Lower Granite Dam during the first days of May.(537) However, because flows had not reached 100,000 cfs, spill was not occurring. Without spill, and with transportation systems overwhelmed, many fish passed through the turbines.(538) On May 3, 1995, the Corps acceded to requests by the TMT and initiated spill despite below-spill trigger flows.(539) As a result of the low spill throughout the migration season, the Corps transported much higher numbers of smolts than apparently anticipated by the BiOp.(540) In total, an estimated seventy-eight percent of Snake River smolts were transported.(541) This heavy reliance on transportation contrasts with NMFS's characterization of the transportation provisions of the BiOp as "experimental."(542) The high levels of transported fish led salmon advocates to charge that the federal "spread the risk" policy was nothing more than a clever public relations tool.(543) Like most failures to implement the 1995 BiOp, the failure to achieve the eighty percent FPE spill requirements and the resulting heavy reliance on transportation can be traced to the gas cap constraints on spill operations. (544) Keeping levels of dissolved nitrogen below the gas cap became the primary management consideration throughout 1995.(545) The policy of strict adherence to gas caps by the federal water managers and the TMT stemmed from concerns about gas bubble trauma. However, the minimal observed effect of gas bubble trauma calls this rationale into question. The BiOp created an extensive biological monitoring program to examine smolts for any signs of gas bubble trauma throughout the migration season.(546) Even at Ice Harbor, where total dissolved gas levels routinely exceeded 130 percent,(547) the biological criteria for gas bubble trauma were never exceeded during 1995.(548) In light of the benefits associated with spill and the importance of achieving eighty percent FPE, the lack of observable gas bubble trauma suggests that the BiOp set maximum dissolved nitrogen levels too low. Also, the BiOp specifically required modifications to dam spillways and stilling basins to reduce gas supersaturation at Ice Harbor and John Day Dams "as soon as possible."(549) However, the Corps has postponed the decision to modify stilling basins until December 1999.(550) Spillway flow detectors, or "fliplips," will be installed by 1997.(551) C. Reservoir Drawdowns The NMFS BiOp required limited reservoir drawdowns at John Day Dam on the lower Columbia and the four lower Snake River reservoirs.(552) Although much controversy existed surrounding the merits of drawdowns,(553) NMFS considered drawdowns to be one of the most significant measures to avoid jeopardy.(554) The BiOp required federal water managers to operate lower Snake River reservoirs at MOP from April 10 through late August, when adult fall chinook begin to enter the lower Snake River.(555) At John Day, the BiOp required MIP level from April 20 to September 30.(556) Implementation of Snake River drawdowns in 1995 had mixed results. To allow testing of a surface collection system, Ice Harbor was never drafted.(557) While the federal water managers drafted Lower Granite, Little Goose, and Lower Monumental to within one foot of MOP by April 1,(558) they failed to maintain the drawdown until the return of adult fall chinook in late August, as specified in the BiOp.(559) Instead, the reservoirs were filled in early May, in an attempt to reduce flows and thus reduce dissolved gas levels downstream at Ice Harbor.(560) Despite no discussion of the relative priorities of drawdown and compliance with state water quality standards in NMFS's BiOp, federal water managers chose to ignore the drawdown provisions; instead, they attempted to comply with the dissolved gas standards. With dissolved gas levels placing a major constraint on river operations, implementation of the John Day drawdown followed a similar pattern. By April 20, the John Day Reservoir levels met MIP, as required.(561) However, with high levels of dissolved nitrogen below John Day, the Corps maintained low levels of spill, soon causing the reservoir to fill above MIP.(562) As with spill, dissolved gas constraints formed the dominant management consideration in drawdown implementation. After the 1995 migration season, the Corps abandoned design activities aimed at mitigating the effects of a drawdown to MOP on irrigators and migrating salmon.(563) The NMFS BiOp established an apparently legally binding plan for increasing Columbia Basin salmon survival. But this plan, not nearly as ambitious as the Council's program or the tribal plan in its effort to change the status quo of hydrosystem operations, was not implemented by the federal water managers in 1995, and consequently became the subject of a court challenge.(564) Beyond the failure to implement its provisions, the BiOp suffers from serious design flaws: 1) its use of seasonal flow averages allowed water managers to fail to shape flows to produce optimal salmon migration; 2) its dissolved gas limits constrained almost every aspect of river operations and prevented implementation of many measures NMFS determined were necessary to avoid jeopardy to the listed species; and 3) its reliance on the TMT to make the adjustments required to produce the flow and passage measures specified in the BiOp proved to be misplaced.(565) VI. Imposing a Fish and Wildlife Budget, Restructuring River Governance, and Improving Salmon Science Funding for Columbia Basin fish and wildlife restoration is largely from electric rates charged by BPA, the region's federal wholesale electric power supplier.(566) In the mid-1990s, BPA experienced a financial crisis due to deregulation of the wholesale electric power industry, competition from emerging natural gas-fired electric generators, a heavy debt load from an ill-conceived (and mostly nonfunctioning) nuclear power plant program, a variety of subsidies to aluminum plants and irrigators, and rising fish and wildlife costs.(567) The agency responded by lobbying Congress to impose a "cost cap" on fish and wildlife measures and to exempt BPA from environmental laws. While Congress considered the legislation, the heads of BPA, the Council, and NMFS brokered an administrative agreement that capped BPA's fish and wildlife costs, so a legislative solution was deferred. Congress did, however, instruct the Council to investigate changes in fish and wildlife governance that would increase regional control. These developments made implementation of any of the competing salmon restoration plans uncertain. A. BPA's Financial Crisis Until the mid-1990s, the electric power industry was comprised of a series of vertically integrated monopolies serving specific, limited geographic areas. But the electric industry, like the telephone, airline, and natural gas industries before it, is now in the process of deregulation. The Energy Policy Act of 1992 authorized new electric producers and brokers to supply wholesale electricity.(568) And in 1996, the Federal Energy Regulatory Commission (FERC) promulgated a rule requiring high voltage transmission owners to provide open access to third parties on terms, prices, and conditions similar to those they charge themselves.(569) This rule, among other things, requires regulated electric utilities to separate power generation from transmission line functions.(570) The upshot of these measures will be a Northwest electric industry characterized by new electric producers not limited to specific geographic areas, serving both utilities and industrial users, and using BPA transmission lines.(571) This new era of competition, which eventually could see consumers choose among electric retailers, much as they now choose long distance telephone suppliers, is expected to reduce electric prices, at least for large customers. The emergence of a new low-cost electric supplier, natural gas-driven combustion turbines, is also driving prices down. Low natural gas prices, themselves the product of deregulation, improvements in drilling technology, and advances in gas turbine technology (borrowed from the aircraft industry), have combined to make it possible to construct efficient electric generation at costs often lower than existing generation, especially nuclear generation.(572) Coupled with these regulatory and technological innovations is a West Coast-wide surplus of electric generating capacity that is likely to persist for some time.(573) This new competitive environment will prompt a dramatic restructuring of both the Northwest electric industry and BPA.(574) BPA has found itself in a particularly vulnerable position because of its large bureaucracy, (575) its staggering nuclear power plant debt,(576) and rising fish and wildlife costs.(577) A variety of activities subsidized by the agency add to its financial and regulatory burden, including conservation and renewable resource programs as well as programs providing low rates for industrial customers, residential consumers served by investor-owned utilities, and irrigators.(578) These costs and subsidies threaten to make BPA power uncompetitive with the new generation of gas-fired electricity production facilities coming on line. BPA's response to the new competitive era was fourfold. First, it cut its budget and staff by twenty percent.(579) Second, it proposed a rate reduction for its preference customers.(580) Third, it agreed to new five-year contracts with its industrial customers that ensured that those customers would not seek power from new sources. Fourth, while unable to secure a congressionally imposed cap on fish and wildlife measures, BPA managed to broker an administratively imposed cap. The latter two measures were extremely controversial and are discussed in the succeeding subparts. B. New Industrial Power Contracts and the "Stranded Costs" Issue BPA's chief fear was that its industrial customers, mostly aluminum companies, would sign power contracts with the agency's new competition, leaving BPA with a $7 billion nuclear debt,(581) fewer customers, and declining revenues. The new open market seemed to offer industrial customers, which produce one-fourth of BPA's revenue,(582) the opportunity to abandon BPA and thereby avoid paying a share of this debt. This so-called "stranded costs" issue was controversial because BPA's primary argument for embarking on what turned out to be a failed nuclear power program in the 1960s and 1970s was that it needed the generating capacity to continue to serve industrial and utility loads in an era of rising demand.(583) Although BPA's industrial power contracts would not expire until 2001, one contract provision allowed customers to terminate by giving one year notice.(584) BPA's contracts also allowed the agency to charge any terminating industrial or utility customer for "any otherwise unrecoverable costs" incurred by BPA through the year 2001 as a result of the termination. (585) This provision seemed to offer BPA the option of billing departing customers for an appropriate share of stranded costs as a kind of "exit fee," an interpretation that would have provided a strong disincentive for any customer to terminate its contract before its expiration in 2001. BPA initially suggested that it might interpret the provision to allow imposition of an exit fee,(586) but after its industrial customers howled in protest,(587) the agency agreed that in their case "any otherwise unrecoverable costs" meant only minor costs associated with transmission facilities used to serve the customer, not exit fees designed to recover stranded costs associated with the agency's nuclear debt.(588) As a result of this contractual interpretation, BPA contended that it had no assurance that its industrial customers would not terminate their contracts, making roughly one-quarter of its revenue unstable. Consequently, the agency quickly signed new five-year contracts giving it the stability it sought.(589) The contracts also provided BPA's industrial customers a rate decrease of 12.7 percent(590) and formally excused them from helping to pay BPA's nuclear debt in the form of an exit fee. Combined with the proposed rate decrease for its utility customers, this decrease caused BPA to seek to reduce costs, by cutting its staff(591) and lobbying for a cap on fish and wildlife expenditures. C. The Fish and Wildlife "Budget" and the Concept of Foregone Hydropower Revenues Although the annual carrying costs of BPA's nuclear debt exceeded its fish and wildlife expenditures,(592) BPA instead chose to ask Congress to "cap" its fish and wildlife expenditures,(593) despite the specification in the Northwest Power Act that all fish and wildlife costs attributable to the construction and operation of the federal Columbia Basin hydroelectric system were costs of doing business, to be paid by the hydroelectric system.(594) Senator Mark Hatfield (R-Or.) led a legislative effort to restrict BPA's fish and wildlife expenditures and to deem such expenditures sufficient to meet the requirements of environmental laws like the ESA.(595) A similar effort earlier in 1995 led to passage of what became known as the timber salvage rider, which effectively exempted certain federal timber sales from environmental laws.(596) The proposed legislative cost cap was especially controversial because it sought to put a ceiling not only on BPA's out-of-pocket expenditures for fish and wildlife, but also on the amount of "foregone hydropower revenues" due to operational changes at the dams that benefit migrating salmon. In other words, the alleged "costs" of flow augmentation and spill measures to hydropower generation would be calculated and charged against the budget amount. This was a deeply flawed concept, for not only did it erroneously assume that the principal purpose of Columbia Basin dams is hydropower production,(597) it also singled out fish and wildlife and imposed a hydropower "surcharge," while ignoring other uses of the river that "cost" hydropower revenues, such as flood control, navigation, and irrigation.(598) Moreover, the amount that fish and wildlife "costs" hydropower vary widely from year to year, depending on water conditions, electricity markets, and how the formula to estimate such costs is structured. In 1996, for example, BPA found it considerably "cheaper" to implement the NMFS BiOp than the agency claimed previously.(599) Although there was support for the cost cap legislation among the Northwest Senate delegation,(600) negotiations between representatives of the Northwest Power Planning Council, BPA, and NMFS produced a draft interagency agreement designed to provide both financial stability for BPA and sufficient fish and wildlife expenditures to support recovery of the listed Columbia River salmon.(601) This draft agreement, endorsed by both Republican senators and the Democratic administration in October 1995, called for a formal memorandum of agreement among BPA, the Council, NMFS, and other federal agencies establishing a six-year average "budget" for fish and wildlife expenditures, widely reported at $435 million annually, with a $325 million contingency fund to cover additional expenditures due to court orders or low water years.(602) The draft agreement supplanted, at least temporarily, the effort to suspend the application of environmental laws. Throughout 1996, negotiations continued among federal water, power, and fish and wildlife agencies, in consultation with the region's Indian tribes, over the specific terms of the interagency agreement.(603) By the time a formal agreement was finally reached in September 1996,(604) the details were significantly different than the agreement announced the year before. Most noticeably, the $435 million budget had been transformed into separate "dual budgets": one a fixed amount of $252 million covering BPA's out-of-pocket expenditures, the other an unfixed amount covering system operations necessary to implement the BiOp and other specified actions.(605) The dual budget approach seemed to avoid the problems of the "foregone hydropower revenues" concept, but also appeared to allow BPA to back away from expending $435 million annually. In 1996, a high water year, the estimated cost of system operations for fish and wildlife was less than $100 million, leaving roughly $90 million of the original $435 million unexpended.(606) Although the tribes argued that BPA should apply this money to measures not covered by the budget, like lower Snake River reservoir drawdowns,(607) the Memorandum of Agreement (MOA) only required BPA to annually publish an accounting of the actual cost of operations necessary to meet fishery obligations and report whether the cost was below $183 million (the difference between the publicized $435 million cost and the $252 million which the MOA commits BPA to spend).(608) The MOA merely provided that "any net amount [under an average of $183 million per year] will be considered in determining the funding available to meet fish and wildlife obligations" after the MOA expires in 2002.(609) Despite failing to hold BPA to the publicized $435 million budget, the tribes did manage to negotiate an "annex" to the MOA establishing detailed management and accounting procedures, such as annual prioritization of projects to be funded, integration of the privatization process with the federal budget process, quarterly reporting of expenditures, and review by the independent scientific advisory board.(610) The MOA also restricted use of the $325 million contingency fund to adverse water conditions, court orders, natural disasters declared by the President, and "fishery emergencies" declared by joint resolution of the Secretaries of the Interior and Commerce.(611) These restrictions would seem to make the contingency fund unavailable for the financial consequences of unforeseen events or even some foreseen events, such as costs related to new ESA listings.(612) Although the fish and wildlife budget may achieve financial security for BPA while meeting the agency's fish and wildlife obligations and ensuring that funds are spent wisely and efficiently,(613) it remains controversial for several reasons. First, although the amount of the budget originally was designed to allow implementation of both the NMFS BiOp and the Council's program,(614) the budget does not actually allow implementation of all measures in those restoration plans. Implementation of the budget has focused almost exclusively on immediate measures called for by the NMFS BiOp, paying only lip service to additional changes in the operation of federal dams in the future called for by both the BiOp and the Council's program.(615) Second, certain measures in both the BiOp and Council's program are not authorized by the budget. For example, drawdowns of the lower Snake and John Day reservoirs will apparently require separate congressional approval, as will additional purchases of water in the Snake Basin to boost flows in the Snake River.(616) Third, the fish and wildlife budget appears to confirm that economics, not biology, is the ultimate determinant of salmon recovery.(617) This is inconsistent with the ESA and the Northwest Power Act, both of which call for science-based decision making and relegate economics to a secondary consideration.(618) Implementation of the budget may be vulnerable to judicial challenge, since the budget does not override these statutes.(619) D. Fish and Wildlife Governance Although Congress decided against legislating a fish and wildlife cost cap in 1995, the Energy and Water Development Appropriation Act of 1996,(620) adopted in November 1995, directed the Council to report to Congress within 180 days "regarding the most appropriate governance structure to allow more effective regional control over efforts to conserve and enhance anadromous and resident fish and wildlife with the Federal Columbia River Power System."(621) After consulting with interested parties, conducting a two-day workshop, and circulating a draft proposal for public review, the Council submitted its governance report to Congress in May 1996.(622) In many ways, the Council's report was as significant for what it did not recommend as for what it did recommend, especially in light of the eagerness of some senators in the Northwest delegation to legislate a new structure for governing Columbia Basin fish and wildlife that would include an exemption from the ESA.(623) The report's principal recommendation concerned administrative action: an executive order to require federal agency consistency with the Council's program.(624) The Council recommended legislation only if administrative collaboration failed;(625) even then, it specifically rejected waiving the requirements of the ESA.(626) Thus, representatives of the Columbia Basin states went on record as supporting salmon recovery under the ESA as well as the Northwest Power Act. The Council observed widespread regional agreement that there should be one fish and wildlife plan, rather than multiple plans.(627) However, the Council failed to recommend a specific process for reconciling the various plans. The report stated only that the Council would "help facilitate efforts to bring sovereigns together periodically, on the basis of equality, to work toward a single fish and wildlife program, and to coordinate technical and policy aspects of implementation."(628) This rather vague promise(629) was perhaps a reflection of the fact that a successful reconciliation process will require an effective dispute resolution mechanism, on which the Council promised a further report later in 1996.(630) The Council promised to undertake certain reforms itself as a means of increasing accountability. First, perhaps recognizing its dismal record in enforcing its program,(631) the Council promised to begin making regular findings of consistency or inconsistency of program implementation efforts and to publish those findings for the benefit of the region and Congress.(632) Second, the Council committed itself to establishing an effective biological monitoring and evaluation program and asked for help in this regard from the region's fish and wildlife managers.(633) Third, the Council proposed that, as a general rule, it would require "all but proven measures" in its program to have a monitoring and evaluation component, the results of which would influence future funding.(634) Although in many respects the Council's governance report was an enlightened one, the report failed to seize the opportunity to explain to Congress why integrating the sovereigns--with their various plans, authorities, and responsibilities--is a pre-condition to a unified approach to Columbia Basin system management. The report also failed to explain just how much the Council's program has been hampered by the federal water management agencies' failure to implement it. While the political environment may have cautioned against recommending new legislation to a Congress that had enacted a timber salvage rider, waiving environmental laws,(635) the Council missed an important opportunity to document how the Northwest Power Act's vague enforcement provisions encouraged a cavalier long-term attitude on the part of the federal agencies responsible for carrying out the program's measures.(636) The governance report also failed to recommend a dispute resolution process, despite widespread recognition among commentators that the lack of such a process was a central problem with the Council's program.(637) The Council's governance report may ultimately prove to be an important document, but its influence is likely to be undermined by its separation from a contemporaneous review of the region's power system conducted under the auspices of the Northwest governors.(638) This separation illustrates two fundamental flaws in the process for resolving the salmon crisis. First, it repeats the critical historical mistake of assuming that decisions about how the power system should function can be made in the absence of fish and wildlife needs because these needs can be accommodated later.(639) The chief result of this mistaken assumption is the current endangered status of Snake River chinook and sockeye.(640) Fish and wildlife managers and hydropower planners must make simultaneous decisions about river operations, instead of continuing the disunion of fish and wildlife needs and power system management. The second flaw in separating fish and wildlife governance from decisions about the future of the region's power system is that the revenues available to implement fish and wildlife restoration will be affected considerably by decisions about the power system. For example, fish and wildlife restoration efforts could be damaged irretrievably if the governors' regional review were to lead to a separation of BPA's transmission and power sale functions, or if transmission rates were not designed to fund BPA's fish and wildlife (or nuclear) debts, or if federal power sales had to compete with power suppliers that had no obligation to pay for such debts.(641) On the other hand, BPA's power would remain competitive and stable fish and wildlife funding could be assured if, in separating BPA's transmission and power sale functions, a "system benefit charge" were imposed to fund fish and wildlife restoration and other public purposes.(642) The BPA Administrator, the Regional Director of NMFS, and the former Chairman of the Northwest Power Planning Council have all recently objected to the separation of fish and wildlife governance from the regional review of the power system.(643) Failure to successfully integrate these processes would be a mistake of cataclysmic proportions for the region's fish and wildlife and those who care about them. Salmon advocates have set forth a comprehensive set of proposals to restructure the Northwest power system(644) but, as of this writing, these proposals have been ignored. E. Improving the Science of Salmon Restoration One of the most widespread complaints about salmon restoration efforts has been an alleged lack of scientific justification for certain program measures, particularly mainstem passage measures.(645) In response, the Northwest Power Planning Council established an Independent Scientific Group (ISG) to evaluate the scientific underpinnings of its program and to help oversee the implementation of its mainstem passage experiment.(646) Subsequently, the Council and NMFS signed an interagency agreement establishing an Independent Scientific Advisory Board to provide scientific advice and recommendations to both agencies.(647) Although the board is to supersede the Council's scientific group, the latter completed an important evaluation of the program in September 1996. At the same time, under the leadership of Senator Slade Gorton (R-Wash.), Congress amended the Northwest Power Act to require independent scientific evaluation of program measures.(648) This subpart discusses these developments. 1. The Report of the Independent Scientific Group In 1994, the Northwest Power Planning Council formed the ISG, which was charged with conducting a biennial review of the science underlying the Council's program and developing a conceptual foundation for the program--that is, an overall set of scientific principles and assumptions upon which the program would be based and against which it would be evaluated.(649) Two years later, in September 1996, in its report entitled Return to the River,(650) the ISG alleged that the Council's program lacked an adequate conceptual foundation. The ISG report proposed an ecologically based framework that called for reestablishing what the report referred to as "normative river conditions."(651) If policy makers take its recommendations seriously,(652) the ISG report could lead to substantial changes in the operation of the Columbia Basin hydroelectric system. The report's ecological perspective implicitly criticized the Northwest Power Act's concentration on the effects of hydroelectric development and operations on the decline of Columbia Basin salmon. The report emphasized that successful salmon restoration will be a function of upland management, estuarine protection, and ocean conditions, as well as mainstem passage and flow measures.(653) The report contained more explicit criticism of the Council's fish and wildlife program, which the report faulted for lacking an overarching, coherent set of assumptions about the interaction of the physical and biological components of the salmon ecosystem.(654) This "fundamental shortcoming," as the report termed it, was the product of the fact that the program is essentially "a collection of individual measures proposed by a diverse constituency" that are based on the "fundamentally flawed" assumption that "economically desirable fish populations can be managed in isolation from other components of the ecosystem."(655) The report concluded that the program's emphasis on technological fixes, such as hatcheries and barging and trucking juvenile salmon, as substitutes for lost ecosystem functions had failed.(656) As a result, the report urged fundamental change: "[w]e must move from a view that the Columbia River is largely a vehicle for economic development to one that accommodates [both] short-term economic gain and the longer-term regional benefits of a functional salmonid bearing ecosystem."(657) The ISG's alternative conceptual foundation contained the following three fundamental principles: 1) restoration must address the entire natural and cultural ecosystem, including freshwater, estuarine, and ocean habitats as well as human developments; 2) sustainable salmon productivity will require a network of complex and interconnected high-quality habitats; and 3) managers must recognize that salmon adapt to their habitat through diversity of life history and genetic and metapopulation organization.(658) These principles led the report to some surprising conclusions, including a focus on the mainstem and away from headwaters streams for spawning, a concentration on maintaining healthy populations, and a bias against technological solutions to salmon restoration unless and until they proved themselves effective. On the surface, the ISG report seemed to lend support to critics of the current assumptions that alteration of mainstem flows is the key to salmon restoration, and that ocean conditions may be largely ignored.(659) While the report found fault with both assumptions,(660) it did endorse restoration of high flows in the spring, and it acknowledged that ocean conditions (except for harvest regulation) are not controllable.(661) What the report found objectionable about the mainstem flow assumption was not so much that it was flawed, but that it was thought to be sufficient to restore the runs.(662) While calling for a restoration of the spring freshet, the ISG report warned that the mainstem should not be merely considered a conduit for salmon; the report advocated restoration of mainstem habitat like that which exists in the undammed Hanford Reach on the mid-Columbia.(663) Perhaps the most arresting element of the report was its suggestion that mainstem habitat could be restored by permanent reservoir drawdowns that would expose and revitalize drowned alluvial reaches, especially behind John Day and McNary Dams.(664) It was the mainstem, not headwaters tributaries, that historically supported metapopulations of salmon, and so the report argued that restoration efforts should seek to reestablish ecological conditions where such a metapopulation could reassert itself.(665) With respect to its conclusion that ocean conditions could not be ignored, the report stressed the linkages between freshwater and ocean conditions, noting that periods of warm ocean temperatures coincide with adverse freshwater conditions, putting Columbia Basin salmon in a kind of "double jeopardy."(666) Far from reducing the importance of freshwater measures, this observation led the ISG to suggest that more protective efforts may be necessary to maintain stock diversity, even during periods of high productivity, in order to maintain a sufficient genetic reserve to withstand subsequent productivity declines.(667) The report was especially critical of the assumption that the marine environment is static, concluding that oscillating periods of ocean productivity and infertility underscored the importance of stock-specific regulation of ocean harvests.(668) The report also called into question the use of traditional harvest models which assume that oceanic changes are insignificant.(669) Altogether, the report's recognition of the relationships between the marine and freshwater environment hardly deemphasized the need to pursue rehabilitative measures in the latter.(670) The ISG report also advocated a sweeping change in the amount of scientific proof required before technological fixes are implemented. Whereas traditionally technical responses to declining salmon on runs, like hatcheries and trucking and barging juvenile salmon, were adopted with little or no scientific study, the report suggested shifting the burden of proof to advocates of such measures to show that they will be effective before being implemented on a widespread basis: "[t]echnology that attempts to circumvent the normative river (e.g., hatcheries and transportation) should only be implemented on a large scale basis after intensive evaluation."(671) Neither transportation nor hatcheries underwent this careful evaluation prior to implementation. The report concluded that "[a]vailable evidence is not sufficient to identify transportation as either a primary or supporting method of choice for salmon recovery in the Snake River Basin."(672) The ISG also noted that, despite "large-scale hatchery efforts and massive outplantings of hatchery-reared fish, the hatchery program has failed to replace or mitigate for lost natural reproduction of [salmon]."(673) Although the report did not rule out hatcheries, it recommended that they be used cautiously and be integrated into restoration strategies focusing on habitat restoration, reduction of human-induced mortalities, and conservation of genetic diversity.(674) The report was doubtful as to whether there was a role for large-scale hatchery production in the future.(675) Return to the River may well change the nature of the discussion concerning the type and timing of salmon restoration measures. It would be unfortunate, however, if the report became a vehicle for dismantling current restoration efforts while interested parties debate whether to erect the ISG's conceptual foundation as the new paradigm. Although the report challenged the assumption that a direct relationship exists between river flows and salmon survival, it endorsed river operations that restore a more natural hydrograph, which is what current proposed operations attempt. In addition, the political and economic feasibility of permanently drawing down John Day and McNary Dams seems quite unlikely in the short run.(676) There is a distinct danger that the report's more provocative suggestions may be used by those defending the status quo as an excuse not to pursue interim measures, such as the rather modest proposed drawdown of the John Day pool to MOP.(677) Thus, while Return to the River may signal a new era in salmon restoration, that new era is likely to see a fusion of the report's scientific principles and the political and economic realities reflected in current restoration efforts. 2. Senator Gorton's Science Rider Through the efforts of Senator Slade Gorton, an early and enthusiastic supporter of imposing a legislative cost cap on salmon restoration,(678) Congress included a rider in the 1997 energy and water development appropriations bill aimed at requiring scientific evaluation of the Council's program measures. This effort was largely redundant, since the Council had already taken steps to ensure independent scientific evaluation of its program measures.(679) Despite its redundancy, the effects of this rider could prove to be problematic if it is interpreted to substantially change the process of funding program measures. The rider amended section 4(h)(10) of the Northwest Power Act to give the Council a statutory role in the funding of measures implementing its program, requiring the Council to make recommendations to BPA concerning funding priority measures implementing the program.(680) These recommendations must be based on "sound science principles; benefit fish and wildlife; and have a clearly defined objective and outcome with provisions for monitoring and evaluation."(681) In this regard, the Council must establish an Independent Scientific Review Panel, which, in conjunction with Scientific Peer Review Groups (also called for by the rider), will review fish and wildlife projects proposed for BPA funding.(682) The rider directs the Council to "fully consider" the panel's recommendations concerning priorities for project funding and, if the Council does not adopt the panel's recommendations, to explain its reasons for rejecting them in writing.(683) This resembles the process that the Council must employ if it chooses to reject program measures recommended by the fishery agencies and tribes.(684) In fact, the rider might be viewed as an effort to impose a check on fishery agency and tribal recommendations, which the Ninth Circuit ruled are entitled to a "high degree of deference" from the Council.(685) However, since the Council must only "fully consider" the panel recommendations, it does not appear to be required to give them the same deference accorded to agency and tribal recommendations.(686) The implementation of the rider's requirements is likely to slow the process of funding fish and wildlife restoration because it imposes a new level of administrative review and requires an opportunity for public comment on panel recommendations.(687) Moreover, the rider directs the Council to consider "the impact of ocean conditions" and to "determine whether the projects employ cost-effective measures to achieve program objectives."(688) Opponents of restructuring hydroelectric operations often point to ocean conditions as the chief determinant of the health of salmon runs.(689) Still, industrial users of BPA power were unsuccessful in their attempt to convince the Ninth Circuit to require program measures to satisfy a cost-benefit analysis.(690) While the rider may be a response to the Ninth Circuit's decision in the NRIC case, it does not appear to overturn that decision. The rider does not amend section 4(h)(7) of the Act,(691) which was the basis for the court's rulings on deference.(692) Although the rider establishes an additional level of review of program recommendations, it does not change the criteria that program measures must meet under section 4(h)(6) of the Act.(693) Also, the rider does not change the principle of "textual consistency" by which the courts give effect to all applicable statutory provisions.(694) Consequently, the cost effectiveness test required by the rider does not supplant section 4(h)(6)(C), which makes cost considerations a secondary factor to biological effectiveness.(695) If the rider is in fact constitutional,(696) its chief substantive effect will be to elevate the consideration of ocean conditions as an express factor in the evaluation of salmon restoration measures and require all measures to have clearly defined objectives and monitoring and evaluation provisions.(697) However, the additional process and new bureaucracy the rider creates could complicate salmon recovery efforts.(698) VII. CONCLUSION: THE BURDEN OF UNCERTAINTY AND SALMON RESTORATION If salmon recovery is now the primary environmental issue in the nation,(699) this distinction is due to repeated failures to achieve what Congress ordered a decade and a half ago: parity between hydropower and salmon in the operation of Columbia Basin dams.(700) The program formulated by the Northwest Power Planning Council to fulfill the parity promise proved unable to fundamentally restructure hydroelectric operations, largely because the Council failed to defer to the biological opinions of the region's fish and wildlife agencies and Indian tribes(701) and failed to attempt to enforce the program it approved.(702) The failure of the Council's program led to the ESA listings of 1991 and 1992.(703) The ESA listings changed the dynamic of salmon restoration efforts, but in unexpected ways. The listings prompted the Council, in 1991, to promulgate the first improvements in mainstem flows since the program's inception in 1982.(704) In 1992, NMFS determined that these improvements satisfied the ESA.(705) But when NMFS made essentially the same determination in 1993, the state of Idaho sued. The results of that suit,(706) coupled with a successful judicial challenge to the Council's 1991 amendments by environmentalists and the Yakama Indian Nation,(707) ushered in a new era of salmon restoration efforts. This new era has witnessed the development of three competing salmon restoration plans.(708) Unfortunately, the plan thought to have the greatest binding effect, the NMFS BiOp, was the least protective of salmon in the river and postpones the critical decision about whether to allow salmon to migrate inriver until 1999.(709) Worse, the region apparently lacks the will to fully implement any of the plan.(710) In a larger sense, the story of Columbia Basin salmon restoration efforts in the 1990s belies the concerns of those who decry ESA decision making as inflexible and absolutist.(711) In fact, in implementing the ESA, NMFS appeared to be quite sensitive to economic factors in, for example, 1) establishing flow targets that were more modest than the Council's;(712) 2) making no commitment to reservoir drawdowns other than to lower the John Day reservoir to MOP, and then subsequently eliminating that requirement;(713) 3) calling for maximum barge and truck transportation under low-flow conditions;(714) and 4) suggesting that the Council's call for an additional one million acre-feet of water purchases was "unrealistic."(715) Indeed, the record reveals that NMFS decision making under the ESA was actually more sensitive to economic and political concerns than Council decision making under the Northwest Power Act.(716) The Council's 1996 report to Congress on fish and wildlife governance recognized the need to establish a process to reconcile the three plans, but was vague about the details of how to accomplish it.(717) Until such a reconciliation is achieved, or until Congress rewrites the operative statutes, Columbia Basin salmon restoration will be largely a function of the NMFS BiOp, as limited by the fish and wildlife "budget,"(718) deals between NMFS and the state of Montana regarding storage reservoir levels,(719) and NMFS's acquiescence to the Corps' unwillingness to proceed with John Day and lower Snake River reservoir drawdowns.(720) This compromised approach represents a significantly weaker path than those charted by either the Council's 1994 amendments or the tribes' 1995 restoration plan. In 1995, these compromises resulted in failure to meet mainstem flow targets,(721) widespread failure to shape flows to maximize salmon migration,(722) and a wholesale commitment to barging and trucking salmon on the Snake.(723) If these results are not the product of a "lowest common denominator" approach,(724) they hardly reflect a "major overhaul."(725) Indeed, they invite renewed judicial scrutiny.(726) Both the ESA and the Northwest Power Act require decision making based on "best available" science.(727) It seems unlikely that river operations under the "compromised" BiOp satisfy this standard. True, a number of scientific studies have apparently reached contradictory conclusions concerning the efficacy of mainstem flow velocity improvements in terms of increasing salmon survival. But upon close inspection, the study results do not reveal significant scientific dispute. Rather, they disclose different approaches to the issue of how to proceed in the face of scientific uncertainty, a willingness to allow economic factors to dominate supposedly scientific conclusions, and an apparent conflict of interest in the case of one study. NMFS, the U.S. Fish and Wildlife Service, and a 1994 report of independent scientists commissioned by the Council all endorsed the idea that a positive relationship exists between increased flow velocities and increased salmon survival.(728) On the other hand, a NMFS-appointed recovery team and the 1996 report of the Council's independent group of scientists questioned whether there were sufficient data to conclude that such a relationship exists.(729) The National Research Council also rejected reservoir drawdowns, but it did so on economic cost grounds, coupled with scientific uncertainty regarding the effectiveness of drawdowns.(730) This is not, however, a scientific conclusion. Rather, it is a policy choice consistent with the long tradition of requiring something approaching scientific certainty before restructuring river operations to benefit migrating salmon in the Columbia Basin.(731) Yet the opponents of flow increases and reservoir drawdowns touted the recovery team's policy decision as the epitome of sound science.(732) Although it is true that there are little scientific data on the effects of reservoir drawdowns,(733) this is because drawdowns have not been systematically tried. On the other hand, there is a good deal of experience with the chief alternative to increased flow velocities and drawdowns--the Corps' barging and trucking program(734)--and a 1994 independent peer review of the artificial transport program concluded that virtually no evidence existed suggesting that the transportation program benefits salmon when river flows are close to normal.(735) Perhaps the greatest scientific challenge to the efficacy of flow increases and drawdowns was levied by the report of the National Research Council,(736) which Senator Hatfield tried to elevate to the "Supreme Court of Science."(737) But not only were the ultimate conclusions of that report influenced heavily by economics,(738) the principal author of the mainstem recommendations was a biologist who has largely spent his career in the service of BPA's industrial users and regional utilities--fierce opponents of inriver measures like increased flows and drawdowns.(739) A more therapeutic consequence of the National Research Council report was its recommendation to establish an independent scientific advisory board to guide salmon restoration efforts with a'more disinterested, less economically oriented "science" in the future.(740) The Council and NMFS acted quickly to implement this recommendation, creating an interagency scientific advisory board,(741) an effort that made Senator Gorton's subsequent science rider seem redundant.(742) The most recent contribution to the science of salmon recovery, the report of the Council's Independent Scientific Group,(743) may signal a new era. The report's call for a "normative" river, a restoration of ecological conditions supplying a continuum of high-quality habitat throughout the salmon life cycle,(744) could revolutionize salmon restoration if taken seriously by policy makers. Permanent reservoir drawdowns (like those recommended in the tribal plan)(745) to expand mainstem spawning, restoration of the spring freshet to facilitate migration, and imposing the burden of proof on technological fixes like artificial transportation and hatchery production were among the report's more provocative recommendations.(746) The latter recommendation recalled the Ninth Circuit's conclusion that the Northwest Power Act shifted the burden of proof in favor of salmon restoration measures.(747) Pursuit of the Independent Scientific Group report's vision of a "normative" river should not, however, become an excuse to avoid making more modest reforms, such as drawing down the John Day reservoir to MOP in the interim.(748) BPA's efforts to cap its fish and wildlife expenditures, which led to the administratively approved fish and wildlife "budget" in 1995,(749) clearly illustrate that economics, not science, is driving (or retarding) salmon restoration efforts. In truth, the chief impediment to effective restoration of Columbia Basin salmon has always been the resistance of those who have benefitted economically from the construction and operation of Columbia Basin dams to paying the full fish and wildlife costs the dams continue to impose.(750) The fish and wildlife "budget" not only singles out the hydropower "costs" of fish and wildlife measures, as no other resource is singled out, but seems to administratively elevate hydropower as the dominant use of the dams in the absence of legislative approval.(751) Yet, if the budgeted amount were sufficient to carry out a biologically based restoration program, the concept could work to increase the discretion of fish and wildlife managers to structure a restoration program without power interest interference. Unfortunately, this is now merely an academic prospect, for critical measures like John Day and lower Snake reservoir drawdowns and increased water purchases in the upper Snake basin are excluded from the budget.(752) The current fish and wildlife budget may prove to be substantively inadequate for successful Columbia Basin salmon restoration, but that is hardly the only worry of salmon advocates. The very existence of the current budget has been cast into doubt by ongoing efforts to restructure BPA's role in the Northwest electric power system.(753) If the region's response to the new era of electric competition is to separate BPA's transmission and power sales functions, while relieving the former from repaying the stranded costs of BPA's nuclear program or fish and wildlife costs, the result will make BPA power uncompetitive and salmon restoration unaffordable.(754) A more sensible result would be to ensure that the transmission system pays its fair share of the costs of developing and operating the power system, which still produces the cheapest electric rates in the nation.(755) Fish and wildlife advocates should embrace the BPA administrator's call for a "system benefit charge," which would ensure that nonfederal electric producers using federal transmission lines are charged rates that reflect the true cost of constructing and maintaining the power system.(756) A restructured Northwest electric power system should also eliminate "below cost" subsidies to aluminum companies, irrigators, and barging companies(757) because these subsidies violate the Northwest Power Act principle of paying the full cost of electric power development and generation.(758) In the end, neither science nor economics will spare endangered Columbia Basin salmon from extinction. Resolution of the question of how much scientific uncertainty is tolerable in salmon restoration is not an answer scientific studies can provide. That is fundamentally a question of values, a subject in which scientists possess no special expertise. Similarly, economists can offer no special insights as to how much the region should be willing to pay for restored Columbia Basin salmon runs. That is a policy question that ought not to be left to specialized technicians. Instead, it is a question to be resolved by the public, and not just those who live in the Columbia Basin, because restoration of Columbia Basin salmon--like other issues involving endangered species, federal subsidies, and Indian treaty rights--is a national issue. At this point, after over a decade and a half of largely unsuccessful restoration efforts, the public should demand that decision makers lower the burden of scientific proof demanded of mainstem passage measures and practice the adaptive management policies the Council has preached (but only intermittently implemented).(759) This would enable the pursuit of the experimental measures necessary to keep juvenile salmon in the river (and out of barges and trucks), like reservoir drawdowns and augmented flows, as well as the close monitoring necessary to determine their efficacy. But given the salmon life cycle, the truth is that such experiments must persist for a decade or more to produce meaningful results. The public ought to be as patient with these inriver measures as it has been with the Corps' barge and truck program, which has shown little or no positive results during the past two decades.(760) Perhaps a better time frame for measuring tolerable patience in salmon restoration is that supplied by the Columbia Basin Indian tribes. Promised the "right to take fish" in the Stevens Treaties 140 years ago(761) and told by the Supreme Court that this promise entitled them to a fishing "livelihood--that is to say, a moderate living,"(762) the tribes still await fulfillment of this promise. In 1996, the Chairman of the Columbia River Inter-Tribal Fish Commission reported that the average tribal fisherman in the Columbia Basin lost $7,000 annually,(763) which seems to be a blatant violation of the treaty promise. If those charged with restoring Columbia Basin salmon cannot find the vision and courage to pursue an effective restoration program, the best course of action for the tribes--as well as for the region's signature natural resource--would be to employ their treaty rights to save the salmon that is their lifeblood.(764) (1) Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. [subsections] 839-839h (1994) (commonly referred to as the Northwest Power Act). See Michael C. Blumm & Brad L. Johnson, Promising Q Process for Parity: The Pacific Northwest Electric Power Planning and Conservation Act and Anadromous Fish Protection, 11 Envtl. L. 497 (1981) [hereinafter Blumm & Johnson, Promising Parity]; Michael C. Blumm, Fulfilling the Parity Promise: A Perspective on Scientific Proof, Economic Cost, and Indian Treaty Fishing Rights in the Approval of the Columbia Basin Fish and Wildlife Program, 13 Envtl L. 103 (1982) [hereinafter Blumm, Fulfilling Parity]. (2) 16 U.S.C. [subsections] 1531-1644 (1994). (3) We do not mean to suggest that the region achieved parity between salmon restoration and hydropower generation--in fact, this Article shows that the promise of parity is actually fading in the mid-1990s. By "beyond the parity promise," we mean only that the Northwest Power Act is no longer the driving force in salmon restoration efforts. (4) For example, the out-migration of Columbia Basin juvenile salmon in 1996 was one-seventh of that just four years before. See infra notes 33, 165. (5) Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1389 (9th Cir. 1994), cert. denied, 116 S. Ct. 50 (1995). (6) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 900 (D. Or. 1994), vacated as moot 56 F.3d 1071 (9th Cir. 1996). The direct service industries (DSIs) and the Pacific Northwest Generating Cooperative had intervened as defendants in the case and later appealed the decision. The Ninth Circuit dismissed their claim as moot, since the new 1995 BiOp had already been released and was now the appropriate BiOp to legally challenge. Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 56 F.3d 1071, 1074-75 (9th Cir. 1995). (7) See Columbia Basin Indian Tribes & The State & Fed. Fish & Wildlife Agencies, Detailed Fishery Operating Plan with 1994 Operating Criteria 3, 20-24 (1993) (technical recommendations for operating the FCRPS submitted by tribes and fishery agencies, concluding that transportation both 1) does not substitute or mitigate for poor inriver conditions created by the FCRPS and 2) has not halted the decline of threatened and endangered salmon in the basin); Natural Resources Defense Council et al., Changing the Current Affordable Strategies for Salmon Restoration in the Columbia River Basin 6 (dec. 1994) [hereinafter Changing the Current] (noting that the tribes and fishery agencies, originally supporters of barging, no longer support transportation of juveniles as a salmon recovery measure because declines in salmon populations "intensified as the use of barging increased); Phillip R. Mundy et al., Transportation of Juvenile Salmonids from Hydroelectric Projects in the Columbia River Basin: An Independent Peer Review at viii (May 1994) (noting that available evidence does not support using barging as either a primary or supporting method for salmon recovery in the Columbia Basin); see also The Independent Scientific Group, Return to the River: Restoration of Salmonid Fishes in the Columbia River Ecosystem 5, 516 (Sept. 1996) [hereinafter ISG Report] (a report to the Council, criticizing the implementation of barging without a mechanism for evaluating the success of transportation); infra notes 656, 671, 672 and accompanying text. (8) See, e.g., National Research Council, Upstream: Salmon and Society in the Pacific Northwest 24-39 (1995) (discussing the salmon life cycle and the ecology of river basins and the Pacific Ocean). The uncertainty of the effect of ocean conditions on Columbia Basin salmon populations is a troublesome issue and difficult to resolve scientifically. See id. at 33-38; id. at 33 ("Ocean effects are logistically difficult to observe because they occur over such large spatial and temporal scales that they are not easy to observe directly, in contrast with the more local effects of land use, fishing, and impoundments."). In late 1994, the U.S. Army Corps of Engineers, the operator of most of the Columbia Basin dams, released a study concluding that ocean conditions may have more of an effect on the poor condition of salmon runs than the hydroelectric system. See Lynn Francisco, Ocean Conditions Called Major Factor in Salmon Declines, Clearing Up, Jan. 9, 1995, at 6. Willis McConnaha, a fisheries scientist for the Council, acknowledged that ocean conditions are an "overwhelming factor" in the number of salmon returning from the ocean. Id. But he cautioned that the Corps' study should not be used to avoid implementing costly recovery measures in the Columbia and Snake Rivers. Id. (9) Northwest Power Planning Council, 1994 Columbia Basin Fish and Wildlife Program 5-46 to 5-47 (Dec. 1994) [hereinafter 1994 PROGRAM] (discussed infra notes 166-255 and accompanying text). (10) Id. at 5-25 to 5-28, 5-32. (11) National Marine Fisheries Serv., U.S. Dep't of Commerce, Endangered Species Act--Section 7 Consultation: Biological Opinion: Reinitiation of Consultation on 1994-1998 Operation of the Federal Columbia River Power System and Juvenile Transportation Program in 1995 and Future Years 92-94 (Mar. 1995) [hereinafter 1995 BIOP] (discussed infra notes 256-347 and accompanying text). (12) Id. at 91. (13) See American Rivers v. National Marine Fisheries Serv., No. 96-384MA (D. Or. filed Mar. 13, 1996); Lynn Francisco, Lawsuit Charges NMFS, Corps with Failure to Implement BO, Clearing Up Mar. 25, 1996, at 7. The plaintiffs in American Rivers sought a preliminary injunction, but withdrew the motion in return for a settlement agreement with NMFS to provide spill and water for river flows as called for in the 1995 BiOp. See infra note 36. As of this writing, a motion for summary judgment against NMFS is pending before the district court. (14) Wy-Kan-Ush-Mi Wa-Kish-Wit (Spirit of the Salmon) (1995) [hereinafter Tribal Plan] (salmon restoration plan released by the tribes of the Nez Perce, Umatilla, Warm Springs, and Yakama reservations) (discussed infra notes 348-402 and accompanying text). (15) Id. at 5B-41 to 5B-43. (16) Id. at 4, 9. (17) 1994 Program, supra note 9, at 4-4. (18) See Bonneville Power Admin., State of the Agency, BPA at the Midpoint of the Decade 5 (1996) (discussing the effect of the BiOp on river operations); 1 Bonneville Power Admin., Business Plan, Final Environmental Impact Statement 14 (1995) [hereinafter BPA Business Plan] (predicting that the BiOp "will essentially establish river operations for the next several years"); United States Army Corps of Engineers, North Pacific Division, 1995 River Operations for Fish, Salmon Passage Notes, Sept. 1995, at 3, 4 (proclaiming that Columbia and Snake Rivers operations during the juvenile migration season 1) followed the mandates of the 1995 BiOp, 2) were "largely successful," and 3) "put fish first"). (19) But see infra notes 271-279 and accompanying text, questioning the conventional assumption that the NMFS BiOp is enforceable, but the Council's program is not. (20) See infra Part V. (21) See Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction at 32-34, American Rivers v. National Marine Fisheries Serv., (D. Or. June 12, 1996) (No. 96-384MA) [hereinafter American Rivers Motion]; Complaint for Declaratory Judgment and Injunctive Relief, American Rivers v. National Marine Fisheries Serv., (D. Or. filed Mar. 13, 1996) (No. 96-384MA) (charging that NMFS and federal operating agencies failed to implement measures identified in the NMFS BiOp as necessary to avoid jeopardy to the continued existence of listed salmon). (22) See Pamela Russell, Hatfield Releases Draft Legislation on Bonneville Fish Budget, Clearing Up, Sept. 25, 1995, at 1, 14-15 (comparing legislative cost caps). (23) See generally Michael C. Blumm, The Northwest's Hydroelectric Heritage: Prologue to the Northwest Electric Power Planning and Conservation Act, 58 Wash. L. Rev. 175 (1983) [hereinafter Blumm, Hydroelectric Heritage1 (chronicling the history of hydroelectric development in the Northwest, including BPA's creation and its role in the region prior to the enactment of the Northwest Power Act). (24) 16 U.S.C. [sections] 839b(h)(10)(A) (1994) (requiring BPA to use its funding "in a manner consistent with" the Council's program). (25) See, e.g., Statement by Vice President Al Gore, Office of the Vice President (Oct. 23, 1995) (announcing the agreement); Press Release from Sen. Mark O. Hatfield (R-Or.), Chairman, Senate Committee on Appropriations (Oct. 23, 1995) (same); Letter from Alice M. Rivlin, Director, Office of Management and Budget, to Senator Mark O. Hatfield (R-Or.), Chairman, Senate Committee on Appropriations (Oct. 24, 1995) (outlining the agreement's two major elements: 1) a stable, multi-year fish and wildlife expenditure budget for BPA, averaging no more than $435 million per year over the next six years; 2) a "fish cost contingency fund" consisting of approximately $325 million to cover additional fish and wildlife costs above the $435 million average annual level, including costs imposed by court decisions), all reprinted in Northwest Water Law & Policy Project and Northwestern School of Law of Lewis & Clark College CLE Office, Second Annual Who Runs the River Conference: The Columbia River Hydropower System (Oct. 27, 1995) (conference materials on file with the Northwest Water Law & Policy Project, Northwestern School of Law of Lewis & Clark College); Brent Walth & Joan Jewett, Clinton, Hatfield Announce Salmon Deal, The Oregonian, Oct. 25, 1995, at A1. (26) See infra notes 604-619 and accompanying text. (27) Energy and Water Development Appropriations Act, Pub. L. No. 104-46, [sections] 508(c), 109 Stat. 402, 420 (1995), Northwest Power Planning Council, Report to Congress: Fish and Wildlife Governance and the Columbia river Hydropower System (May 1996) [hereinafter Council Governance Report] (discussed infra notes 621-637 and accompanying text). (28) Pub. L. No. 104-46, 109 Stat. 402 (1995). (29) Northwest Power Planning and Conservation Act, [sections] 512, 110 Stat. 2984, 3005 (1996) (adding a new [sections] 4(h)(10)(D) to the Northwest Power Act) (discussed infra notes 678-698 and accompanying text). (30) Agreement Regarding the Independent Scientific Advisory Board Between the Northwest Power Planning Council and the National Marine Fisheries Service (Jan. 23, 1996) [hereinafter Council/NMFS Agreement]. (31) But see infra notes 68548G, 691495 and accompanying text, which argue that the rider does not overturn the judicially required deference to fish and wildlife agencies and tribes nor change the statutory criteria program measures must meet. (32) See, e.g., ISG Report, supra note 7 (1996 study by the Council's independent scientific group challenging technological fixes, such as barge and truck transportation and hatcheries, and advocating permanent drawdowns), discussed infra notes 38, 49-50, 56, 649-677 and accompanying text; National Research Council, supra note 8 (scientific report on Pacific Northwest salmon released in late 1995), discussed infra notes 47, 65, 182, 242, 339, 736, and 740; Mundy, supra note 7 (1994 study on merits of juvenile salmon transportation submitted to NMFS and the U.S. Fish and Wildlife Service by the Independent Peer Review Team), discussed infra notes 57-60, 62-63, 65, 67, 240, 735 and accompanying text; Glenn F. Cada et al, Review of Information Pertaining to the Effect of Water Velocity on the Survival of Juvenile Salmon and Steelhead in the Columbia River Basin (Feb. 1994) (report prepared for the Council in 1994 by a group of independent scientists), discussed infra notes 49, 61. The National Research Council (NRC) report, cited above, drew heavy criticism. For example, Ted Strong, the executive director of the Columbia River Inter-Tribal Fish Commission (CRITFC), labeled the NRC study as "weak" and "flawed," see Lynn Francisco, NRC Salmon Report Draws Ire; Tribes Call It Flawed, Clearing Up, Dec. 11, 1995, at 8, although Sen. Mark O. Hatfield (R-Or.) called the NRC "the Supreme Court of Science." See Lynn Francisco, Study Rejects Drawdowns, Supports Barging, Encourages Biodiversity, Clearing Up, Nov. 13, 1995, at 8. CRITFC was not alone in its criticism of the NRC's report. See Paul Koberstein, Fishy Science: How Scientists Endanger the Salmon, Cascadia Times, Jan. 1996, at 10, 13 (questioning whether the NRC study was a "fair, independent assessment of scientific fact"). (33) The Idaho Department of Fish and Game estimated that only 1116 wild adult spring/ summer chinook reached Lower Granite Dam in 1995, an all-time low, and only one-seventh of the number that returned just four years previously. American Rivers Motion, supra note 21, at 2. Even worse, estimates of juvenile Snake River spring/summer salmon in 1996 were only about 168,000, down from 1.3 million in 1995. See id.; American Rivers Motion, supra note 21, app. A; Memorandum from Michael H. Schiewe, Division Director, Coastal Zone and Estuarine Studies Division, National Marine Fisheries Service 1 (Jan. 23, 1996) (on file with authors). (34) See Pamela Russell, Hydrosystem Balances Precariously as Spring Freshet Rages, CLEARING UP, July 17, 1996, at 6-7 (noting that lower Columbia River flows were expected to remain above 300,000 cubic feet per second (cfs) into July). In March 1996, at the outset of the spring downstream migration season, precipitation above Grand Coulee Dam was 133% of average; above The Dalles, precipitation was 134% of average. See Fish Passage Ctr., Weekly Report #96-1, at 1 (Mar. 15, 1996). (35) See infra note 439 and accompanying text. (36) See Stipulation by and Between the Plaintiffs and Federal Defendants Withdrawing Plaintiffs' Motion for a Preliminary Injunction, American Rivers v. National Marine Fisheries Serv. (July 23, 1996), discussed in Joan Laatz Jewett, Deal Ensures Increased Flows for Salmon, The Oregonian, July 24, 1996, at B5. Under the agreement, the federal government agreed to spill water at Columbia and Snake River dams, as called for in the NMFS BiOp, until August 31, 1996; the government also agreed to release over a million acre-feet of water from Columbia and Snake reservoirs to boost river flows to facilitate salmon migration. In return, the plaintiffs withdrew their request for a preliminary injunction but promised to return to court to challenge other aspects of the government's failure to implement the BiOp as well as the adequacy of the BiOp itself. See Sierra Club Legal Defense Fund, Limited Agreement Reached to Benefit This Year's Columbia River Salmon Migration, Administration Holds Concurrent Negotiations; Further Litigation Expected (July 23, 1996); see also supra note 13. See infra note 228 for the definition of acre-foot of water. (37) See, e.g., Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 668, 686 (1979) ("Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood--that is to say, a moderate living."). (38) See, e g., ISG Report, supra note 7, at 18 (stressing that salmon restoration measures must begin with a "conceptual basis" that addresses the entire life cycle of salmon and their habitat--including ocean conditions and human developments); see also infra notes 651, 658 and accompanying text. See generally National Research Council, supra note 8, at 307 (emphasizing that salmon restoration measures must address the fact that salmon traverse ecosystems and political boundaries throughout their life cycle). (39) See Endangered and Threatened Species; Proposed Endangered Status for Snake River Sockeye Salmon, 56 Fed. Reg. 14,055-02, 14,058 (Apr. 5, 1991); Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1376 (9th Cir. 1994). (40) Endangered Snake River salmon must circumnavigate eight dams on their way to the ocean: Bonneville, The Dalles, John Day, McNary, Ice Harbor, Lower Monumental, Little Goose, and Lower Granite. (41) 1995 BIOP, supra note 11, at 38; see also U.S. Fish and Wildlife Serv., Region 1, Fish and Wildlife Service Data Shows 1995 Dworshak Reservoir Drawdown Helps Snake River Salmon Smolts 1 (Aug. 1995) (reporting a "dramatic increase" in smolt survival due to flow augmentation from Dworshak Reservoir releases). (42) In July 1995, fish flows throughout the Columbia Basin generated surplus power sales averaging 3,000 megawatts, selling for an average price of 12 mills per kilowatt hour, for total sales of $27 million. Pamela Russell, Water Year Just Ended Was First Good One in Four Years, CLEARING UP, Aug. 14, 1996, at 9. (43) The Council described this conflict between the dam operators and migrating juvenile salmon: The intent of [improving inriver conditions] is to provide a better migration corridor for juvenile fish passage. A big part of that objective is met by providing higher river flows during the migration period The timing of water releases for flow augmentation, unfortunately, does not coincide with peak needs for electricity. This conflict creates a tradeoff between power needs and fish needs for the hydro system. Northwest Power Planning Council, Draft Briefing Paper Detailed Fishery Operating Plan 6 (Aug. 1994). (44) 1995 BiOp, supra note 11, at 113. Like running water through a smaller pipe, decreased cross-sectional area increases the speed at which the same amount of water flows. Faster flows benefit smolts by speeding their migration to the ocean, thus more closely mimicking natural river conditions, reducing exposure to reservoir predation, and minimizing water quality problems such as nitrogen supersaturation and high temperature. Id. at 38; see also supra note 41 and accompanying text. The Ninth Circuit also explained the concept of reservoir drawdown: "Drawdowns are releases of water that reduce the cross-section of rivers by lowering water levels in mainstem reservoirs. The result is increased velocity of the streamflow with less water than flow augmentation would require." Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1381-82 n.23 (9th Cir. 1994); see also Andrew S. Noonan, Just Water over the Dam? A Look at the Endangered Species Act and the Impact of Hydroelectric Facilities on Anadromous Fish Runs of the Northwest, 28 Idaho L. Rev. 781, 796-802 (1992) (an in-depth discussion of the drawdown concept and its origin in the state of Idaho). (45) See 1995 BiOp, supra note 11, at 114 (noting that a Council study found that a drawdown of John Day from "minimum irrigation pool" to "minimum operating pool" would provide travel time reductions equivalent to over three million acre-feet (MAF) of flow augmentation). See infra notes 202-203 for definitions of minimum irrigation and operating pools and infra note 228 for a definition of acre-foot. (46) 1995 BIOP, supra note 11, at 114 (noting travel time benefits of drawdown). (47) See, e.g., Willis E. McConnaha & Duane E. Anderson, Northwest Power Planning Council, Comparison of Methods to Increase Water Velocities in the Columbia River 1 (Nov. 1993) (concluding that since a drawdown at John Day has never occurred, the biological effects of a drawdown at that reservoir "cannot be fully assessed"); Snake River Salmon Recovery Team, Final Recommendations to the National Marine Fisheries Service at VIII-66 (May 1994) [hereinafter Draft Recovery Plan] (NMFS-appointed scientists concluded that they did not have the "scientific information needed to endorse drawdown as a firm recovery action"). The Corps has performed test drawdowns at Lower Granite and Little Goose reservoirs at the Council's behest. See 1 Northwest Power Planning Council, Strategy for Salmon 21 (1992) [hereinafter Strategy for Salmon]. The NRC also weighed in on this issue in its scientific report on Pacific Northwest salmon, concluding that drawdowns were less effective than transportation in improving juvenile survival. National Research Council supra note 8, at 210-11. However, the NRC s main reason for rejecting reservoir drawdowns as a viable salmon recovery option was the "economic costs associated with elimination of hydropower production, navigation, and recreation," id. at 211, an odd conclusion for a scientific study. Drawdowns may have an adverse effect on other river uses, such as recreation and navigation. Id. Drawdowns could also eliminate the option of transporting juveniles at certain dams because water levels would be too low to use collection facilities. Id. In addition, drawdowns could require retrofitting darns to keep adult fish ladders operative. Id. (48) Seven of the eight mainstem dams that Snake River salmon must pass have screens or bypass systems that divert juveniles around the dam or are used for collection. Northwest Power Planning Council, Appendices to The Draft Anadromous Fish Amendments to the 1994 Columbia River Basin Fish and Wildlife Program app. A at 15 (Sept. 1994) [hereinafter Draft Amendments Appendix]. The Corps expects to install bypass facilities at The Dalles Dam by 1998. Id. But see James D. Crammond, Screening Water Diversions for Fish Protection. A Survey of Policy, Practices and Compliance in the Pacific Northwest, 2 Animal L. 101 (1996) (concluding that compliance with screening requirements by 1996--under both the Council's program and the NMFS BiOp--will be problematic); see also ISG Report, supra note 7, at 306, 308 (citing studies at Bonneville Dam that showed that survival of smolts passing through the bypass was actually lower (due to predation) than those passing through the power turbines and concluding that, under current bypass technology, the Council's goal of diverting 9096 of the fish away from the power turbines cannot be achieved). (49) For example, the NMFS-appointed Recovery Team acknowledged that juvenile survival decreases when flows are low, but was not convinced that the converse is also true--that juvenile survival increases when flows are high. Draft Recovery Plan, supra note 47, at VIII-46 to VIII-47. The NRC also concluded that "[t]he effectiveness of flow-augmentation alternatives has not been demonstrated." National Research Council, supra note 8, at 209. NMFS has also struggled with the flow-survival issue. In 1993, NMFS claimed that the effects of flow augmentation on juvenile sockeye salmon could not be quantified. National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion on 1993 Operation of the Federal Columbia River Power System 19 (May 1993) [hereinafter 1993 BiOp]. However, the agency acknowledged an apparent relationship between higher flows and higher survival rates for juvenile spring/summer chinook. Id. at 21. For juvenile fall chinook, NMFS found that "[w]hile it is reasonable to conclude that increased flows are likely to result in increased survival . . ., quantifying the relationship between flow and survival is difficult because of the lack of direct observations." Id. at 24. On the other hand, a group of independent scientists prepared a report for the Council and concluded that "[d]espite . . . problems with existing data sets, the general relationship of increasing survival with increasing flow . . . still appears to be reasonable." Cada, supra note 32, at 56. The Council's Independent Scientific Group, while acknowledging that "it is both reasonable and well documented that the amount of time spent by yearling emigrants within the hydroelectric system is inversely proportional to water velocity," nevertheless found it impossible "to separate the influence of flow from that of other variables on survival." ISG Report, supra note 7, at 55. The report concluded: A prominent feature of the debate in the region over fisheries restoration has been the shape and parameters of the relationships between flow, velocity, fish travel time, and survival. It seems unlikely that an incremental quantitative relationship between these variables would apply equally to all species and life history types or necessarily be constant over time and space. Hence, we suggest the abandonment of the search for the elusive "correct" or "optimum" flow and instead we advise focusing on the restoration of a riverine velocity structure as close as possible to the pre-impoundment hydrograph. Id. at 56. (50) ISG Report supra note 7, at 268-69 (discussed infra notes 664-665). (51) 1993 BiOp, supra note 49, at 18; see also John Ogan, The Need for a Smolt Travel Time Objective in the Columbia Basin Fish and Wildlife Program to Protect and Restore the Northwest's Imperiled Salmon Runs, 24 Envtl. L. 673, 677 (1994). See generally Cada, supra note 32 (discussing the impacts of low flows on juveniles in a report done for the Council by independent scientists). (52) For example, in 1994 an emergency spill allegedly "cost" BPA $12 million in lost electricity sales. See Draft Amendments Appendix, supra note 48, app. A at 15. (53) 1995 BiOp, supra note 11, at 47. Mortality from bypass facilities ranges from 1% to 3%. Id. at 49. These mortality figures represent only one dam. The cumulative effect of eight dams is much higher. Smolt survival increases with turbine efficiency. Id. at 51. But the precise relationship between turbine efficiency and smolt survival remains unknown. Id. To lessen turbine mortalities, the 1995 NMFS BiOp called for the operation of turbines within 1% of peak operating efficiency during the juvenile and adult passage seasons. Id. at 114. (54) 1995 BiOp, supra note 11, at 48. Structural improvements to dams, such as the installation of spillway deflectors ("flip lips"), which provide a more horizontal drop, reduce the gas supersaturation, and thus reduce the possibility of gas bubble trauma. Sonya Bruce, 1995 Migration Exceeds Expectations, Salmon Passage Notes, Sept. 1995, at 5. The Corps plans to begin installing flip lips at Ice Harbor and John Day in 1997. Id. Stilling basins may also be modified to reduce gas supersaturation. Stilling basins sit at the base of spillways and are the areas where water plunging over dams lands. Telephone Interview with Willis E. McConnaha, Northwest Power Planning Council (Nov. 8, 1996). Nitrogen is entrained in the water at the stilling basin, leading to nitrogen supersaturation. Id. Raising the stilling basin in some fashion, making the plunge pool more shallow, is considered the best way to reduce nitrogen supersaturation problems at the dams. Id.; see infra notes 549-551 and accompanying text (discussing the Corps' failure to implement modifications to stilling basins as required under the 1995 BiOp). (55) For instance, in 1994 emergency spill conditions produced dissolved nitrogen levels of 115%-120%, 5%-10% above the state water quality standards. 1995 BiOp, supra note 11, at 48. A corresponding comprehensive biological survey found evidence of gas bubble trauma in less than .01% of juvenile salmonids, and no signs of gas bubble trauma in adult salmonids or other aquatic organisms. Id.; see also infra note 548 and accompanying text, discussing similar results during 1995. The state fishery agencies of Oregon, Idaho, and Washington, as well as CRITFC, balanced the risks and benefits associated with spill and concluded that spill provides improved juvenile salmon survival, even when nitrogen levels are as high as 125%. Id. at 48-49. Cf Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 900 (D. Or. 1994) (suggesting that the ESA's directive to use the best available science requires NMFS to consider the expert opinion of state and tribal fishery agencies). (56) 1995 BIOP, supra note 11, at 109. Advocates of spill point to the number of returning jacks (premature adult salmon) in 1995, six times higher than the preceding year, as evidence of the effectiveness of 1994's spill operations. Idaho Rivers United A Wild Fish Story: They Shoulda Missed The Boat 6 (undated); see also Draft Amendments Appendix, supra note 48, app. A at 16 ("Most available data shows that fish passing through spillways survive at a higher rate than fish passing through turbines."). The Council's Independent Scientific Group endorsed spill as effective, stating that spill has been "shown to offer high survival of fish up to the point where supersaturation of atmospheric gas becomes a problem." ISG Report, supra note 7, at 308. The report cited surface spill as an especially promising means of fish passage (as opposed to standard spill, which typically occurred at depths of roughly 50 feet below normal operating pools). Id. at 286-88. (57) Mundy. supra note 7, at 9. (58) Smolt transportation in the Columbia Basin began in the late 1960s and early 1970s. Mundy, supra note 7, at 14. Throughout the 1970s, NMFS research projects transported fish at Snake River darns. Id. In 1981, the Corps first began transporting all the smolts collected at Snake River dams. Id. (59) Evidence suggests that transported wild fish suffer more stress than do their hatchery counterparts, id. at 58, possibly because hatchery fish are accustomed to human handling and crowded conditions. NMFS has also concluded that mortality may occur during the handling and collection of juveniles, and that stress, injury, and disease transmission may occur both during and after transportation. National Marine Fisheries Serv., U.S. Dep't of Commerce, Endangered Species Act (ESA) Section 7 Consultation Regarding 1994-1998 Operation of the Federal Columbia River Power System and Juvenile Transportation Program, in 1994-1998, 40 (Mar. 1994) [hereinafter 1994 BiOp]. Also, in the summer of 1994, an estimated 90,000 juvenile summer and fall chinook salmon died at McNary Dam while waiting to be transported, due to increased water temperatures. See Northwest Water Law & Policy Project, In the Halls--News from Government Agencies in the Basin, Big River News, Fall 1994, at 11. (60) Mundy, supra note 7, at 57-58. Studies have demonstrated the possibility of transmission of bacterial kidney disease from hatchery fish to wild fish during transportation. Id. at 58. (61) See 1995 BiOp, supra note 11, at 111 (noting that state and tribal fishery agencies have concluded that transportation causes substantial delayed mortality). (62) Mundy, supra note 7, at 96-102 (finding "overwhelming evidence" that transportation disrupts homing). (63) Id. at 111-15 (speculating that transportation's negative impact on genetic diversity could be quite large). (64) 1995 BiOp, supra note 11, at 57 (mortality rates of between .3% and 6.3%). (65) Id. at 61 (citing Mundy, supra note 7, at 116-17). But cf National Research Council, supra note 8, at 9 ("Based on limited information, transportation appears to be the most biologically effective and cost-effective approach for moving smolts downstream. It should be continued on an adaptive basis (i.e., in such a way that additional information can be obtained about its effectiveness)."). Why cost-effectiveness should be a consideration in a scientific study is not clear. See also supra note 47 for another example of the NRC's odd concern for economic costs in its "scientific" report. (66) ISG Report, supra note 7, at 328. (67) 1995 BiOp supra note 11, at 59; see also infra notes 323-337. In calling for transportation, NMFS relied on studies showing that transported fish returned in greater numbers as adults than non-transported fish. 1995 BIOP, supra note 11, at 59-61. However, state and tribal fishery agencies disputed the value of these studies, citing major flaws in their experimental design. Id. at 60-61. Perhaps the most egregious of these flaws was the studies' failure to distinguish hatchery fish from wild fish and the use of smolts that were collected, marked, and transported only to the next dam downstream as control groups. Id. at 61. The latter meant that the study effectively compared short-haul transportation to long-haul transportation, not instream migration to transportation. Id. The Independent Peer Review also discounted the importance of these studies. Mundy, supra note 7, at 79-83, 118. (68) The Northwest Power Act authorized creation of the Council when three of the four Pacific Northwest states appointed members to the Council. 16 U.S.C. [sections] 839b(a)(2) (1994). The Ninth Circuit approved this "prospective" method of creating an interstate compact in Seattle Master Builders Ass'n. v. Pacific Northwest Elec. Power & Conservation Planning Council, 786 F.2d 1359, 136344 (9th Cir. 1986) (discussed in Symposium, 17 Envtl. L. 767999 (1987)). (69) The legislative history indicated that henceforth hydropower production and fish and wildlife protection were to be "co-equal partners" and instructed federal water managers to treat fish and wildlife "on a par" with other purposes served by Columbia Basin dams. H.R. REP. No. 96-976, pt. 1, at 49, 56-57 (1980), reprinted in 1980 U.S.C.C.A.N. 5989, 6015. (70) 16 U.S.C. [sections] 839b(h)(2)(A) (1994). On the evolution of the hydroelectric system, see Blumm, Hydroelectric Heritage, supra note 23, at 180-230. (71) 16 U.S.C. [sections] 839b(h)(3), (9) (time deadlines), [sections] 839b(h)(6)(E)(ii) (improved flows and fish passage), 839b(h)(2) (fish and wildlife agency and tribal recommendations). (72) See Lorraine Bodi, The History and Legislative Background of the Northwest Power Act, 25 Envtl. L. 365, 366 (1995) [hereinafter Bodi, Northwest Power Act History]; F. Lorraine Bodi, Protecting Columbia River Salmon Under the Endangered Species Act, 10 Envtl. L. 349 (1980). (73) The Columbia Basin Fish and Wildlife Program was promulgated in November 1982 See Michael C. Blumm, Implementing the Parity Primise: An Evaluation of the Columbia Basin Fish and Wildlife Program, 14 Envtl. 277, 279 (1984) [hereinafter Blumm, Implementing Parity]. (74) 126 Cong. Rec. H29, 810 (daily ed. Nov. 17, 1980) (statement of Rep. Dingell). (75) See Michael C. Blumm & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 Envtl 657, 675-76 (1991) [hereinafter Blumm & Simrin, Unraveling Parity] (describing the fishery agency and tribal recommendations). (76) Northwest Power Planning Council, Columbia River Basin Fish and Wildlife Program [subsections] 302-04 (1982) [hereinafter 1982 Program]. (77) See Jody Lawrence et al., University of Wash. Dep't of Civil Eng'g, The Water Budget: A Step Towards Balancing Fish and Power in the Columbia River Basin (Water Resources Series Tech. Report No. 81, 1983). (78) See 6 Waters and Water Rights 101-02 (Robert E. Beck ed, 1994); Blumm & Simrin, Unraveling Parity, supra note 75, at 677, 689. (79) The Northwest Power Act directs BPA to use its funds and authorities "in a manner consistent with the . . . program." 16 U.S.C. [sections] 839b(h)(10)(A) (1994). The Act requires other federal water managers--the U.S. Army Corps of Engineers, the Bureau of Reclamation, and the Federal Energy Regulatory Commission--to take the program "into account at each relevant stage of decisionmaking processes to the fullest extent practicable." Id. [sections] 8398b(h)(11)(A)(ii); see Blumm & Simrin, Unraveling Parity, supra note 75, at 669-70, 712; see also Colloquium, Who Runs the River?, Panel Discussion, 25 Envtl. L. 417, 422 (1995) [hereinafter Who Runs the River?] (BPA General Counsel Harvey Spigal's explanation of the meaning of the consistency provision in the Northwest Power Act). (80) See Blumm & Simrin, Unraveling Parity, supra note 75, at 676-77, 684-85, 710-13. (81) See id. at 688-89 (discussing reasons why BPA and the Corps failed to implement the water budget). (82) See 6 Waters and Water Rights, supra note 78, at 104-05. (83) 16 U.S.C. [sections] 839b(h)(6)(E)(ii) (1994) (requiring the Council's program to "provide flows of sufficient quality and quantity to improve production, migration, and survival of [anadromous] fish as necessary to meet sound biological objectives"); see Adam Berger, An Insider's Perspective on Northwest Resource Information Center v. Northwest Power Planning Council, 25 Envtl. L. 369, 371-73 (1995). (84) See Blumm & Simrin, Unraveling Parity, supra note 75, at 707-08. (85) See id. at 714. In the case of Columbia Basin salmon, the ESA requires the Secretary of Commerce to consider ESA listing petitions from interested persons and determine if a listing is warranted. See 16 U.S.C. [sections] 1533(b)(3)(A)-(C) (1994). (86) See Blumm & Simrin, Unraveling Parity, supra note 75, at 714. Some environmental groups, notably Oregon Trout sought ESA listings more out of an aversion to proposals for hatcheries than out of concern over the failure to restructure river flows. (87) See id. at 725-26; Michael C. Blumm, Saving Idaho's Salmon: A History of Failure and a Dubious Future, 28 Idaho L. Rev. 667, 688 (1991) [hereinafter Blumm, Saving Idaho's Salmon]. (88) See supra notes 44-47 and accompanying text. (89) National Marine Fisheries Serv. & Or. Dep't. of Fish and Wildlife, Past and Present Abundances of snake River Sockeye, Snake River Chinook and Lower Columbia River Coho Salmon (1990). (90) Id. at 11; see Blumm & Simrin, Unraveling Parity, supra note 75, at 716. A subsequent coast-wide survey, conducted under the auspices of the American Fisheries Society, signaled that the salmon crisis was not limited to the Columbia Basin but was regional in scope. Willa Nehlsen et al., Pacific Salmon at the Crossroads: Stocks at Risk from California, Oregon, and Washington, 16 Fisheries 4 (Mar-Apr. 1991), excerpted and analyzed in Joseph Cone, The Alarm That Was Heard: The Crossroads Report, in The Northwest Salmon Crisis: A Documentary History 290, 290-300 (Joseph Cone & Sandy Ridlington eds., 1996) [hereinafter Northwest Salmon Crisis]. (91) Endangered and Threatened Species; Endangered Status for &eke River Sockeye Salmon, 56 Fed. Reg. 58,619 (Nov. 20, 1991). (92) 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 (Apr. 22, 1992). (93) Endangered and Threatened Species; Status of Snake River Spring/Summer Chinook Salmon and &eke River Fall Chinook Salmon, 59 Fed. Reg. 42,529 (Aug. 18, 1994) (emergency interim rule); Endangered and Threatened Wildlife and Plants; Emergency Reclassification of the Snake River Spring/Summer Chinook Salmon and the Snake River Fall Chinook Salmon from Threatened to Endangered Status, 59 Fed. Reg. 54,840 (Nov. 2, 1994) (emergency rule). (94) Northwest Power Planning Council, Amendments to the Columbia River Basin Fish and Wildlife Program (Phase 2) 30-54 (1991) [hereinafter 1991 Amendments]. The Council amended its program in four phases during 1991-92. Phase 1 involved habitat projects; Phase 2 concentrated on improving mainstem flows; Phase 3 addressed production issues and rebuilding schedules; and Phase 4 concerned resident fish and wildlife. See Blumm, Saving Idaho's Salmon, supra note 87, at 689 n.126 (discussing the 1991 amendments). (95) 1991 Amendments, supra note 94, at 34-38. Actually, the target was expressed in terms of a "minimum monthly average flow equivalent." Id. at 34. A "flow equivalent" is "the flow level required to achieve the same water particle travel time as 85,000 cfs at average normal pool elevations at all projects. For example, 81,000 cfs at minimum operating pool elevations is the flow equivalent of 85,000 cfs at average normal pool levels." Id. at 34 n.9. The measures to achieve the target included: 1) lowering the four mainstem lower Snake reservoirs to "near minimum operating pool levels"; 2) releasing 900,000 acre-feet of water from the Corps' Dworshak Dam to produce fish flows in low-water years; 3) shifting flood control storage from Snake Basin reservoirs to Columbia Basin reservoirs in below average water years (adding up to 200,000 acre-feet in the Snake Basin); 4) tapping uncontracted storage at Bureau of Reclamation projects for 90,000 acre-feet and storage at Idaho Power's Brownlee Dam for 110,000 acre-feet; and 5) calling for innovative water uses, such as efficiency improvements, conservation, marketing, option-leasing, and storage buy-backs (producing 100,000 acre-feet). Id. at 36-38, 50-53. In combination, these measures were intended to result in spring flows above the 85,000 cfs target in average or better-than-average water years. Letter from John Shurts, Attorney, Northwest Power Planning Council, to Michael C. Blumm 4 (Aug. 16, 1996) (on file with authors). (96) Letter from John Volkman, General Counsel, Northwest Power Planning Council, to Michael C. Blumm (Aug. 13, 1996) (on file with authors). (97) Id. (98) See Blumm, Saving Idaho's Salmon, supra note 87, at 692. The 1991 amendments promised summer flows for the first time and nearly doubled the amount of water available for fish flows on the Columbia River. Id. at 691-92. (99) Id. at 693; 1991 Amendments, supra note 94, at 28-30. In fairness to the Council, the federal and state fish and wildlife agencies (but not the tribes) acquiesced in the Corps' transportation program. Moreover, the Council's program called for the fishery agencies to decide when and how to transport fish. Strategy for Salmon, supra note 47, vol. II at 39. (100) Northwest Power Planning Council Amendments to the Columbia River Basin Fish and Wildlife Program, Response to Comments 33 (Jan. 1992) [hereinafter Response to Comments] ("However, the Council does not believe that these measures are enough."). (101) 1991 Amendments, supra note 94, at 44. (102) Section 7(a)(2) of the ESA requires an agency proposing a federal action (the "action agency") to "insure" that the federal action "is not likely to jeopardize the continued existence of" any threatened or endangered species, or adversely modify its critical habitat. 16 U.S.C. [sections] 1536(a)(2) (1994). To determine whether a proposed action would jeopardize the listed species, the action agency must consult with an "expert agency." In the case of threatened and endangered Snake River salmon, the expert agency was NMFS, and the consultation resulted in NMFS's BiOps. See 50 C.F.R. [subsections] 222.23(a), 227.4 (1994). For a detailed examination of the consultation process, see James Kilbourne, The Endangered Species Act Under the Microscope: A Closeup Look from a Litigator's Perspective, 22 Envtl. L. 499, 52 71 (1991). A BiOp estimates the effects of a proposed agency action on a threatened or endangered species and determines whether the proposed action will likely jeopardize the continued existence of that species. 50 C.F.R. [sections] 402.14(h) (1994). In essence, the expert agency attempts to predict the future state of the listed species after implementation of the proposed action. If the expert agency can ensure that the post-action state is not likely to jeopardize the species, the agency issues a "no jeopardy biological opinion." 16 U.S.C. [sections] 1536(a)(2) (1994); 50 C.F.R. [sections] 402.14(h)(3) (1994). Conversely, if the expert agency cannot make this determination, it must issue a "jeopardy biological opinion." 50 C.F.R. [sections] 402.14(h)(3) (1994). Jeopardy BiOps must contain "reasonable and prudent alternatives" to the proposed action that will avoid jeopardy. 16 U.S.C. [sections] 1536(b)(3)(A) (1994); 50 C.F.R. [sections] 402.14(g)(5) (1994). (103) National Marine Fisheries Serv., Endangered Species Act Section 7 Consultation/Conference Biological Opinion: 1992 Operation of the Federal Columbia River Power System 15, 21 (Apr. 1992) [hereinafter 1992 BiOp] (NMFS estimated that Snake River flows under the 1992 BiOp would increase from an average of 60,000 cfs during 1984 90 to 64,000 cfs). (104) See Steven Daugherty, Treatened Owls and Endangered Salmon: Implementing the Consultation Requirements of the Endangered Species Act, 14 Pub. Land L. Rev. 203, 242-43 (1993). All NMFS required was that the operation "improve survival and make progress toward reversing the decline of listed and proposed species." Id. at 241 (quoting Letter from Rolland A. Schmitten, Regional Director, National Marine Fisheries Service, to Ernest J. Harrell, Corps of Engineers, North Pacific Division 1-2 (Dec. 5, 1991)); see also Mark A. Eames, The Endangered Species Act, the Federal Columbia River Power System, and the National Marine Fisheries Service, 25 Envtl. L. 389, 393 (1995). (105) 1992 BIOP, supra note 103, at 63-72. (106) 1993 BIOP, supra note 49, at 10-11, 15; see Eames, supra note 104, at 395-96. (107) Eames, supra note 104, at 396. (108) 1993 BIOP, supra note 49, at tbl. 2; see Eames, supra note 104, at 396. The amendments to the Council's program, as well as the Idaho Department of Fish & Game and NRIC decisions, were examined briefly in Michael C. Blumm, Columbia Basin Salmon and the Courts: Reviving the Parity Promise, 25 Envtl. L 351, 360-62 (1995) [hereinafter Blumm, Reviving Parity]. See generally Who Runs the River, supra note 79, at 349-424 (discussing conflicts between entities responsible for managing flows). (109) Oregon intervened on Idaho's side, and the State of Alaska and the four Columbia Basin tribes with Stevens treaty fishing rights--the Confederated Tribes of the Umatilla, Warm Springs, and Yakama reservations and the Nez Perce Tribe--participated as amici supporting Idaho. The Pacific Northwest General;ing Cooperative, the DSIs, and the Public Power Council intervened in support of NMFS. See Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 890-91 (D. Or. 1994). (110) Id at 891. See Will Whelan, Idaho's Strategy in Idaho Department of Fish & Game v. National Marine Fisheries Service, 25 Envtl. L. 399 (1995). (111) Idaho Dep't of Fish & Game, 850 F. Supp. at 892-96. (112) In 1992, NMFS employed a 1984-90 baseline for juvenile salmon, and a 1975-90 baseline for adult salmon. Id. at 893. (113) Id. (114) Id. Nor did NMFS consider alternative baseline periods. Id. (115) Id. (116) Id. at 896 (117) Id at 897. The three juvenile passage models NMFS employed were BPA's Columbia River Salmon Passage model (CRISP), the Council's Passage Analysis Model (PAM), and the state and tribal fishery agencies' Fishish Leaving Under Several Hypotheses model (FLUSH). Id. at 896 n.25. (118) Id. at 897. (119) Id. at 898-99. NMFS rejected the pessimistic assumptions because the agency claimed they failed to account for improved land management and hatchery practices. Id. at 897. (120) Id. at 897-99 (121) Id. at 898-99. (122) Id. at 893. Judge Marsh refused to draw a line between dam construction-related salmon losses and operational losses. Id. at 895. (123) Id. at 893. (124) Id. at 900 (interpreting 16 U.S.C. [sections] 1536(a)(2) (1994)). (125) See infra notes 143-146, 153-156 and accompanying text. (126) Idaho Dep't of Fish & Game, 850 F. Supp. at 900. (127) See Strategy for Salmon, supra note 47; see also infra note 166. (128) See Blumm, Saving Idaho's Salmon, supra note 87, at 692. (129) See id. at 694 (referring to Response to COmments, supra note 100, at 33) ("However, the Council does not believe that these measures are enough."); The Trout & Salmon Leader 6 (Jan/Feb. 1992) (Council Chairman Ted Hallock said, "the plan doesn't do enough, but considering all the interest groups involved, it was the best that could be expected."). (130) Blumm, Saving Idaho's Salmon, supra note 87, at 694. (131) See Berger, supra note 83, at 371, 373. (132) Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council (NRIC), 35 F.3d 1371 (9th Cir. 1994), cert. denied, 116 S.Ct. 50 (1995). The discussion of this case is adapted from 6 Waters and Water Rights 106 09 (Robert E. Beck ea., 1994); and Blumm, Reviving Parity, supra note 108, at 366 69. Challenges to plans under the Northwest Power Act must be brought in the Ninth Circuit. 16 U.S.C. [sections] 839f(e)(6) (1994); see Northwest Resource Info. Ctr., Inc. v. National Marine Fisheries Serv., 26 F.3d 872, 874-76 (9th Cir. 1994). (133) NRIC, 35 F.3d at 1375. (134) Id. at 1376 (citing Robert C. Lothrop, The Misplaced Role of Cost-Benefit Analysis in Columbia Basin Fishery Mitigation, 16 Envtl. L. 517, 522 (1986)). (135) Endangered and Threatened Species; Proposed Endangered Status for Snake River Sockeye Salmon, 56 Fed. Reg. 14,055-02, 14,058 (Apr. 5, 1991). (136) NRIC, 35 F.3d at 1377-78. (137) Id. at 1378 (adopting the arguments made in Blumm, Fulfilling Parity, supra note 1, at 118-121; and Blumm & Simrin, Unraveling Parity, supra note 74, at 667-68); see also NRIC, 35 F.3d at 1377 (noting that the Northwest Power Act "marked the shift of the burden of uncertainty--of proving specific harm to salmon from particular activities--from the salmon to the power system"). (138) NRIC, 35 F.3d at 1375 (citing Kai N. Lee & Jody Lawrence, Adaptive Management: Learning from the Columbia River Basin Fish and Wildlife Program, 16 Envtl. L. 431, 441 (1986)); see also Northwest Power Planning Council, 1987 Columbia River Basin FIsh and Wildlife Program 5 (1987) ("[The program is] possibly, the most ambitious effort in the world to save a biological resource."). (139) NRIC, 35 F.3d at 1395. The General Counsel of the Northwest Power Planning Council has suggested that the court may have responded to the optimism of the Act's drafters, which is plain in the legislative history, but which seemed to dissipate as the difficulty of salmon recovery became apparent in later years. John M. Volkman, Steering by Dicta, 25 Envtl. L. 385, 386 (1995); see also Bodi, Northwest Power Act History, supra note 72, at 367 ("Fourteen years ago, we were optimistic--incredibly, and in hindsight, naively optimistic- about these legal prescriptions to save the salmon. We thought that the Northwest Power Act answered all of our needs."). (140) NRIC, 35 F.3d at 1391-92 (interpreting 16 U.S.C. [sections] 839b(h), (6)(C), (E) (1994)), 138486 (interpreting 16 U.S.C. [sections] 839b(h)(7)(1994)). (141) See Berger, supra note 83, at 372-73. The "Response to Comments" was part of the 1991 amendments to the Council's program. See Response to Comments, supra note 100. (142) NRIC, 35 F.3d at 1385-86 (quoting 16 U.S.C. [sections] 839b(h)(7) (1994)). The court concluded that it was important that the Council explain the relationship between its program measures and the statutory criteria to promote both effective public participation, one of the Act's purposes, and effective judicial review. Id. at 1385. (143) 16 U.S.C.[sections] 839b(h)(7) (1994). (144) NRIC, 35 F.3d at 1389. (145) Id. at 1388; see id. at 1387 ("The difference between the power plan and the fish and wildlife provisions..., then, is a contrast of generous discretion and bound discretion; the difference highlights the limited discretion of the Council [in rejecting the fish and wildlife recommendations of the fishery agencies and tribes]."). Also influencing the court's deference ruling was the Act's legislative history and the fact that the fishery agencies and tribes were involved in drafting the statute. Id. at 1388-89. (146) Id. at 1388; see also id. at 1388-89: Congress realized that furtherance of the purpose of the Act, that fish and wildlife be on a par with energy, required that the Council defer to the recommendations of agencies and tribes. Of course, the reason for this deference to fishery managers is their unique experience and expertise in fish and wildlife. Congress intended that the Council not simply tap this resource of information and advice, but that it "heavily rely" upon it. ...We find it inherently reasonable to give agencies and tribes, those charged with the responsibility for managing our fish and wildlife, a high degree of deference in the creation of a program and the interpretation of the Act's fish and wildlife provisions. (147) Id. at 1394 (adopting the arguments made in Lothrop, supra note 134, at 534-35, 54951). (148) NRIC, 35 F.3d at 1394. The court emphasized that the Northwest Power Act "assures a `power supply,' not a `hydropower supply.'" Id. at 1378 n.13. (149) See Bodi, Northwest Power Act History, supra note 72, at 368. (150) 16 U.S.C. [sections] 839b(h)(6)(A)-(E) (1994). (151) NRIC, 35 F.3d at 1389 (citing Confederated Tribes & Bands of the Yakima Indian Nation v. Federal Energy Regulatory Comm'n, 746 F.2d 466, 473 (9th Cir. 1984); and National Wildlife Fed'n v. Fed. Energy Regulatory Comm'n, 801 F.2d 1505, 1514-15 (9th Cir. 1985)). (152) 16 U.S.C. [sections] 839b(h)(6)(A) (1994). (153) See supra notes 109-126 and accompanying text. (154) NRIC, 35 F.3d at 1391. (155) 16 U.S.C. [sections] 839b(h)(6)(B) (1994). (156) NRIC, 35 F.3d at 1391. (157) 16 U.S.C. [sections] 839b(h)(6)(C) (1994). (158) NRIC, 35 F.3d at 1392. (159) The court did not construe the fourth statutory criterion, which requires consistency with Indian treaty rights, 16 U.S.C. [sections] 839b(h)(6)(D) (1994), other than to suggest that "measures which would allow the extinction of Snake River fall chinook, for instance, upon which the Yakima people largely depend for their livelihood, may very well be inconsistent with the Yakima Nation's treaty reserved fishing rights." NRIC, 35 F.3d at 1392. (160) 16 U.S.C. [sections] 839b(h)(6)(E) (1994). (161) NRIC, 35 F.3d at 1392. (162) Id. at 1392-93. (163) Id. at 1395. (164) See supra text accompanying note 126. (165) Whereas there were 2.5 million adult salmon returning to the Columbia River when the Northwest Power Act passed in 1980, fewer than one million returned in 1994. See Bodi, Northwest Power Act History, supra note 72, at 365 66. In 1995, only 1,116 wild spring/summer adult salmon passed Lower Granite Dam, just one-seventh of the number four years before. American Rivers Motion, supra note 21, at.2, see also supra note 33. (166) The Council's program was created in November 1982 pursuant to the Northwest Power Act 16 U.S.C. [sections] 839b(h)(1)(A) (1994); see supra note 73. Major amendments to the program were made in 1984, 1987, 1990, and 1991-94. See Draft Amendments Appendix, supra note 48, app. A at 1. In 1992, the Council promulgated the Strategy for Salmon, which consisted of amendments to the program that focused particularly on salmon. See Strategy for Salmon, supra note 47. The Strategy for Salmon was integrated into the Council's existing program. See generally Northwest Power Planning Council, 1994 Columbia River Basin Fish and Wildlife Program (Jan. 1994) [hereinafter INTEGRATED PROGRAM] (the latest integrated program prior to the 1994 amendments). Thus, the Council's 1994 amendments included amendments to the Strategy for Salmon, which is merely a label for the portion of the Council's program concerning salmon, as well as to other sections of the program. See id. (other sections of the program include, for example, measures to protect resident fish and wildlife). (167) See Northwest Power Planning Council, Recommendations to amend the Anadromous Fish Sections of the Columbia River Basin Fish and Wildlife Program, Part 1, at 1 (Aug. 1994) (168) Northwest Resource Info. ctr., Inc. V. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994), cert. denied, 116 S.Ct. 50 (1995). (169) The Council noted that the tribes and state and federal fishery agencies had "counseled strongly against delaying the amendment process." See Draft Amendments Appendix, supra note 48, app. A at 3. The Council also wished to act promptly and have its recommendations in place for the 1995 spring migration season: In this process, the Council has taken into consideration the [Ninth circuit's] admonition that "the emphasis of the entire [Northwest Power Act] is on prompt action." Given continuing declines in the salmon runs, having adequate protections in the... program is essential If the Council were to request a new set of amendment recommendations to the...program, the Council probably would be unable to make decisions before the spring 1995 salmon migration. Id. (quoting NRIC, 35 F.3d at 1379 (citing Northwest Resource Info. Ctr. V. National Marine Fisheries Serv., 818 F. Supp. 1399, 1401 (W.D. Wash 1993), aff'd, 25 F.3d 872 (9th Cir. 1994))). And it should be noted that the membership of the Council underwent a significant change following the November 1994 gubernatorial elections in Oregon and Idaho. See infra note 179. For the complete recommendations that the Council received and viewed in promulgating the 1994 amendments, see Northwest Power Planning Council, Draft Anadromous Fish Amendments to the 1994 Columbia RIver Basin Fish and WIldlife Program (Sept. 1994) [hereinafter Draft Amendments] and Draft Amendments Appendix, supra note 48. (170) See Northwest Power Planning Council, Flow/Velocity Survival Workshop: Meeting Summary (Feb. 22-23, 1994); and Northwest Power Planning Council, Flow/Velocity Survival WorkshOp II: Meeting Summary (June 17, 1994) (reproduced in the administrative record of the Council's 1994 Fish and Wildlife Program amendment process as documents 95-1/1040 and 95-1/1041). (171) See Lee & Lawrence, supra note 138, at 44140; John M. Volkman & Willis E. McConnaha, Through a Glass Darkly: Columbia River Salmon, the Endangered Species Act, and Adaptive Management, 23 Envtl. L 1249, 125143 (1993). (172) See infra notes 198-218 and accompanying text. (173) See Blumm, Saving Idaho's Salmon, supra note 87, at 694-95 (discussing the study directives). (174) Harza & Assocs., Review of Reservoir Drawdown, final Report to the Northwest Power Planning Council Columbia Drawdown Committee (Apr. 1994). (175) Bookman-Edmonston Eng'g Inc., Report of the Snake River Basin Water Committee, Water Management Opportunities Within the Snake River Basin, Oregon and Idaho (July 1994). (176) See Adam Diamant & Zach Willey, Water for Salmon: An Economic Analysis of Salmon Recovery Alternatives in the Lower Snake and Columbia Rivers at IV (Apr. 1995) (an economic analysis prepared for the Council). Although this study concluded that dry-year water leasing and other water acquisitions were the most cost-effective alternatives, reservoir drawdown alternatives could be expected to provide the biggest benefits in reduced water travel time. Id. at V. (177) See Draft Amendments Appendix, supra note 48, app. A at 3. (178) The Council declared that any of the five options could be "adopted, modified, or rejected in whole or in part. Draft Amendments Appendix, supra note 48, app. A at 15; for the five options, see Draft Amendments, supra note 169, [sections] 5. (179) The six Council members voting for the 1994 amendments were Chairman Angus Duncan and Ted Hallock of Oregon, Ken Casavant and Ted Bottiger of Washington, and Robert Saxvik and Andy Brunelle of Idaho. The two dissenting Council members, Stan Grace and John N. Etchart, were both from Montana Shortly after the 1994 amendments, the membership of the Council underwent major changes due to the election of new governors in the states of Oregon and Idaho. Joyce Cohen replaced Ted Hallock and, in September 1995, John Brogoitti assumed Angus Duncan's seat on the Council after Duncan resigned. John Etchart replaced Duncan as Chairman of the Council until an election of new officers could be held. In Idaho, Mike Field and Todd Maddock were appointed to represent Idaho, replacing Robert Saxvik and Andy Brunelle. Brunelle had been a controversial appointee of then-Governor Cecil Andrus, replacing Jay Webb, who resigned in November 1994--immediately prior to the release of the 1994 amendments. Also, in December 1995, Ted Bottiger resigned and was replaced by Mike Kreidler. See Northwest Power Planning Council 1995 Annual Report 4 (Oct. 1995) [hereinafter 1995 Annual Report. The last-minute approval of the amendments, just before the Council's membership was about to turn over, received some criticism. See Cyrus Noe, Funding the Fish Plans; Securing the Sixth Vote, Clearing Up, Jan. 16, 1995, at 3. (180) The final result was the Council's 1994 Columbia Basin Fish and Wildlife Program. See 1994 Program, supra note 9. (181) 1994 Program, supra note 9, at 4-4. The Council hoped that the 1994 amendments would lead to an improvement in salmon survival over the next 20 years. Draft Amendments Appendix, supra note 48, app. B at 3. The Council also established a systemwide goal of "a healthy Columbia River Basin" that includes, among other things, the long-term sustainability of native fish." 1994 Program, supra note 9, at 2-1. Another goal of the program is the protection and enhancement of the basin's ecosystem. Id. (182) 1994 Program, supra note 9, at 15-67. The NRC study criticized the concept of setting flow "targets," suggesting that mere targets gave too much discretion to project managers and that, in order to be effective, flow measures had to be imposed as "operating constraints"-meaning that flow measure would take precedence over power production. National Research Council, supra note 8, at 210. (183) 1994 Program, supra note 9, at 5-20. (184) See, e.g., Integrated Program, supra note 166, at 5-8. (185) Lower Granite is one of four lower Snake River federal dams that juveniles must pass through during their migration. Lower Granite is the uppermost dam on the Snake, followed by Little Goose, Lower Monumental, and Ice Harbor. (186) 1994 Program, supra note 9, at 5-20. This flow target would be increased in years of high runoff. Id. Previously, the Council had set aside up to 137,000 acre-feet of water, to be drafted from Brownlee Reservoir, to aid in the migration of juvenile fall chinook. Integrated Program, supra note 166, at 5-10. (187) 1994 Program, supra note 9, at 5-29. Prior to the 1994 amendments, the program rarely set hard flow targets, but had instead provided water for flow augmentation. This water was measured in terms of million acre-feet (MAF). See, e.g., integrated Program, supra note 166, at 5-12 to 5-14; see infra note 228 for a definition of an "acre-foot" of water. The Council created the Water Budget in 1982, reserving 4.64 MAF of water to be used to facilitate juvenile migration. 1982 Program, supra note 76, at 3-4 (1.19 MAF of this amount to be used to aid Snake River migration). The amount of water to be held in storage was increased over the years in the Council's program. See 1995 Annual Report, supra note 179, at 7. According to the Council, the 1994 amendments would provide 11.87 MAF of stored water to be used for increased river flows-compared to 4.64 MAF reserved in the original 1982 Water Budget. Id. For a description and history of the Water Budget, see Blumm Simrin, Unraveling Parity, supra note 76, at 674-79, 688, 690; and supra notes 76-78. (188) 1994 Program, supra note 9, at 5-29. The Council referred to the three-year period as a "critical period," id., adopting terminology employed by hydroelectric system planners. (189) See Blumm & Simrin, Unraveling Parity, supra note 75, 707-08 (listing the recommended flows). (190) 1994 Program, supra note 9, at 5-5, 10-5, 10-8. (191) Under its program, the Council must restore fish and wildlife populations "to the extent affected by the development and operation" of the Columbia Basin hydroelectric system 16 U.S.C. [sections] 839b(h)(10)(A) (1994); see also supra note 70 and accompanying text; Northwest Power Planning Council, 1996 Annual Report 9 (Oct. 1996) [hereinafter 1996 Annual Report.] (192) See infra notes 285, 481 and accompanying text. (193) 1994 Program, supra 9, at 5-6. The Council's mainstem experiment had five elements: 1) a statement of hypotheses concerning the efficacy of both inriver passage and transportation; 2) development of technical aspects of the experiment with the assistance of the Council's independent group of scientists; 3) improvements in inriver passage; 4) an accelerated research effort to clarify issues such as the flow/survival relationship; and 5) a partnership between the Council, NMFS, fishery managers, and river operators to carry out and evaluate the experiment. Id. (194) Id. at 5-7. (195) Id. Actually, the Council thought that while fewer fish would be transported under low flow conditions, more would be transported under high flows. Id. (196) Id. at 5-9 to 5-12. The Council stated that the failure of the region to develop better information on the increased flow/increased survival relationship was partly due to unavailability of new techniques and technologies. Id. at 6-6. But the Council also stressed that it has also been the result of unnecessarily prolonged debates about the need for the research, the best methods for conducting it and the desirability of taking additional action pending the development of additional information. The Council hopes that its call for immediate action and immediate improvement in the knowledge base will help resolve this long-standing impasse. Id. Although the Council noted that there remained uncertainty in the flow/survival relationship, particularly concerning the amount of change in survival for a given change in flow, id. at 5-10, it concluded that "[t]he preponderance of information indicates that during the downstream migration, the lowest survival occurs at the lowest flow. At higher water velocities, survival continues to increase but at a decreasing rate." Id. at 5-11. In 1996, the report of the Independent Scientific Group concluded that a clear flow/survival relationship had yet to be demonstrated, but also concluded that "[f]low is clearly essential for anadromous fish to complete their life cycles." ISG Report, supra note 7, at 239, 247. (197) 1994 Program, supra note 9, at 5-1. The Council had previously adopted a 90% fish guidance efficiency (FOE) as the design criterion for bypass systems, which are devices that deflect fish away from turbine intakes. Id. at 5-36; see also Integrated Program, supra note 166, at 5-25. FGE is the percentage of the total number of fish approaching a turbine intake that are deflected from the turbine by a guidance device such as a turbine intake screen. See 1994 Program, supra note 9, at G-5. The Council had also previously required a 98% or greater salmon survival rate in all bypass or collection facilities, meaning that 9846 of the 90% of salmon deflected into the bypass system survive from the system entrance to its outfall. Id. at 5-37; see also Integrated Program, supra note 166, at 5-26. (198) See Blumm & Simrin, Unraveling Parity, supra note 75, at 725; Blumm, Saving Idaho's Salmon, supra note 87, at 688. (199) 1994 Program, supra note 9, at 5-25. The drawdown would occur from April 16 to June 15-the migration period for many juveniles. Id. The minimum operating level at Lower Granite is 733 feet, although the average elevation is 735 feet. Telephone Interview with Willis E. McConnaha, Northwest Power Planning Council (Jan. 31, 1997). The spillway level is approximately 697 feet at the reservoir; 690 feet is the lowest elevation level at Lower Granite at which adult fish ladders will still operate. Id. The tribes also recommended drawdown of Lower Granite to 710 feet. See infra note 367 and accompanying text. The drawdown was also contingent on the manufacture of dipping baskets capable of handling the juveniles that enter the gatewells. 1994 Program, supra note 9, at 5-25. A gatewell is a rectangular, vertical slot that runs down the forebay of a dam, in which a concrete slab (or several concrete slabs) can be inserted to cover a turbine and make it inoperative during times of turbine repair or modification. Telephone Interview with John M. Volkman & Willis E. McConnaha, Northwest Power Planning Council (Apr. 18, 1996). Migrating fish often end up in the gatewells as they attempt to get past a dam. Id. Dipping baskets would be, in theory, devices that safely extracted the smolts from the gatewells during a drawdown. Id. (200) 1994 Program, supra note 9, at 5-26 to 5-27. (201) Id. at G-12. A spit/way operates as a safety valve for a dam and must be able to discharge major floods without damaging the dam, while also maintaining the reservoir level below some predetermined maximum level. Id. (202) MIP is the lowest level at which irrigation pumps at a reservoir will operate effectively. Id. at 5-29. In other words, a reservoir drawdown to MIP would be to the depth of the irrigation pipes. Bruce, supra note 54, at 3. The only reservoir where a drawdown to MIP is an issue is John Day, which is the longest reservoir on the lower Columbia (203) MOP is "[t]he lowest water level of an impoundment at which navigation locks can still operate." 1994 Program, supra note 9, at G-9. MOP is higher than a spillway crest drawdown. (204) Spillway level is often used synonymously with "spillway crest," the elevation at which the reservoir behind the dam is level with the top of the dam's spillway. Id. at G-12. (205) Id. at 5-26. Little Goose would be drawn down to an elevation of 590 feet. Id. (206) Id. (207) Id. at 5-27. The Council's program is unclear on what actions are to occur in 2002. The Council will "determine" in 2002 if Ice Harbor and Lower Monumental drawdowns will occur. Id. However, the Council called on the Corps to prepare for Lower Granite and Little Goose drawdowns to near spillway or natural river levels as well. Id. at 5-26 to 5-27. Apparently, deeper drawdowns at Lower Granite and Little Goose could be implemented along with the drawdowns at Ice Harbor and Lower Monumental--sometime after 2002. Telephone Interview with Willis E. McConnaha, supra note 199. (208) 1994 Program, supra note 9, at 5-32. (209) Id. at 5-29. (210) Id. at 5-32. However, the Corps subsequently notified NMFS that it did not believe it could put the necessary mitigation measures in place in time for a 1996 drawdown. See 1995 Annual Report, supra note 179, at 9. The Corps declared that it "lacks legislative authority to mitigate for potential impacts to private facilities and that specific Congressional approval is necessary." Id. (211) 1994 Program, supra note 9, at 5-32. Presumably, irrigation pumps could also be extended to help lower the MIP at John Day, although the Council did not mention this possibility. (212) Id. at 5-29. (213) Id. at 5-32 (214) See supra notes 44-50 and accompanying text. (215) PNUCC, the Pacific Northwest Utilities Conference Committee, represents the basin's electric customers, including utilities and the DSIs. During the amendment process, PNUCC recommended the deletion of all language that mentioned drawdowns or any positive benefits from them in the program. See Draft Amendments, supra note 169, [sections] 5 Drawdown, Option 1 at 5-15 to 5-19. (216) 1994 Program, supra note 9, at 15-65. The Council also stated that drawdowns may be "less effective than barge transportation, equally effective, or, as the fish managers suggest, more effective. Without comparative data, we cannot know." Id. at 15-80. (217) Id. at 5-6; see also id. [sections] 3 (detailing the Council's plan for coordinated implementation, research, monitoring, and evaluation); Lee & Lawrence, supra note 138, at 432-33; Volkman & McConnaha, supra note 171, at 1258-63. (218) 1994 Program, supra note 9, at 5-6; see Blumm & Simrin, Unraveling Parity, supra note 75, at 740-77 (complaining that adaptive management was not applied to mainstem passage). (219) 1994 Program, supra note 9, at 5-36, 5-40. Snake River projects were to meet this goal from April 15 to July 31; Columbia River projects from May 1 to August 31. Id. (220) Id. at G-5. FPE should be distinguished from fish guidance efficiency (FGE), which is the proportion of smolts that pass the dams via juvenile passage facilities. 1995 BIOP, supra note 11, at 45. FPE includes the percentages of fish that pass by both spill and juvenile passage facilities. Id Because the presence and effectiveness of juvenile passage facilities varies at different dams, the amount of spill necessary to achieve a given FPE also varies. See id. at 46 (tbl. 12) (showing FGE and the corresponding FPE for spring migrants at four dams). (221) Integrated Program, supra note 166, at 5-26. (222) See 1994 Program, supra note 9, at 5-36; see also Blumm & Simrin, Unraveling Parity, supra note 75, at 699-700 (discussing the lawsuit and negotiations). (223) See Blumm & Simrin, Unraveling Parity, supra note 75, at 699-700 (noting that the spiel agreement--at the time considered a large step in improving juvenile survival rates--was "not reached as a result of the Council's leadership"). (224) 1994 Program, supra note 9, at 5-36. (225) Id. at 5-36, 5-40. (226) See supra notes 54-56 and accompanying text; infra notes 316,546-548 and accompanying text; see also Bonneville Power Admin. et al., Columbia River System Operation Review: Draft Environmental Impact Statement Appendix C-1: Anadromous Fish 4-35 to 4-37 (July 1994) (discussing certain planning methods and conclusions concerning gas bubble disease and anticipated juvenile survival rates at various dissolved gas levels); Bonneville Power Admin. et al., Columbia River System Operation Review: Final Environmental Impact Statement Append C: Anadromous Fish and Juvenile Fish Transportation 3-15 (Nov. 1995) (discussing anticipated juvenile survival rates at different levels of dissolved gas, though in less depth than the DEIS). (227) 1994 Program, supra note 9, at 5-36, 5-40. See infra note 316, for a discussion of the relationship between FPE standards set under the ESA (through the NMFS BiOp) and state water quality standards established under the Clean Water Act. (228) 1994 Program, supra note 9, at 5-21. One acre-foot of water covers one acre to a depth of one foot, the equivalent of 325,850 gallons. Id. at G-1. (229) See id. at 5-21. The Council authorized the earlier 427,000 acre-feet in its 1992 strategy for Salmon. Strategy for Salmon, supra note 47, at vol. II, 27-28. (230) The Council stated that aD of this water should be used to benefit both &eke and Columbia River migrants, and that no corresponding reduction in Columbia River flows should occur unless flow objectives in the Columbia were being met. 1994 Program, supra note 9, at 5-21. (231) Id. (232) See supra notes 193-195 and accompanying text. (233) 1994 Program, supra note 9, at 5-46. (234) Id. at 5-47. The Council's rationale was to limit the number of salmon transported to the "minimum necessary for design study purposes." Id. at 5-46. (235) Id. at 5-47. (236) The Council believed that "significant modification to the present operation of transportation" would result from the 1994 amendments. Id . at 5-46. This would include a change in "the present policy of transporting all fish collected at Lower Granite, except fish collected for research purposes." Id. The Council also stated that its mainstem passage experiment-which is, in effect, an interim spread-the-risk approach-would "likely require a reduction in the number of smolt collection points, perhaps to a single upriver site." Id. at 5-. 6. See supra notes 193-197 for a discussion of the mainstem passage experiment. (237) 1994 Program, supra note 9, at 5-48. (238) Id. at 5-46. (239) Id. (240) Id. at 5-7. Transportation effectiveness was one of the hypotheses in the Council's mainstem passage experiment. See id. at 5-5 to 5-15; see also supra notes 193-195 and accompanying text. The Council noted a U.S. Fish & Wildlife Service (USFWS) review of transportation, which concluded that the available evidence was insufficient 4to identify transportation as either a primary or supporting method of choice for salmon recovery in the Snake River Basin." Mundy, supra note 7, at viii; see also 1994 Program, supra note 9, at 5-12 to 5-13. The USFWS report also stated that transportation operations are 4unlikely to halt or prevent the continued decline and extirpation of listed species of salmon in the Snake River Basin," and that there were insufficient data to determine if transporting listed fall chinook and sockeye salmon would improve survival rates. Mundy, supra note 7, at 11617. The Council noted that its skepticism of the efficacy of transportation contradicted the NMFS Recovery Team's Draft Recovery Plan, which concluded that the data show relatively clear benefits from transportation. 1994 Program, supra note 9, at 5-12. Compare Draft Recovery Plan, supra note 47, ch. VIII; see also Northwest Power Planning Council, Smolt Transportation and its Role in Rebuilding Fish Populations (June 1994) (background paper on transportation in the Basin that reprinted excerpts of Mundy's study that the Council felt would be helpful during the 1994 amendment process and, perhaps, signaling the Council's eventual position on transportation). (241) See 1994 Program, supra note 9, [sections] 7. (242) Id. at 7-5, 7-7. The NBC also felt that preserving genetic diversity is a key component in hatchery operations intended to help restore salmon populations. National Research Council, supra note 8, at 10, 318-19. (243) 1994 Program, supra note 9, at 7-5. (244) Id. at 7-11. (245) See J. Lichatowich et al., A History of Frameworks used in the Management of Columbia River Chinook Salmon 68 (1996). (246) 1994 Program, supra note 9, at 44. (247) Id. at 74. (248) Id. at 7-7 (249) Id. at 7-8, 7-16. (250) Id. at 7-9 (251) Id. at 7-17. Many biologists argue that supplementation should be used to assist depleted populations because numerous small populations are declining, and thus basinwide population diversity is declining as well. Id. at 7-12. Thus, supplementation proponents "recommend rapidly increasing the sizes of these small populations to prevent their extinction and loss of genetic diversity by properly using some form of artificial propagation." Id. Other biologists fear that supplementation could change the identity of these depleted populations or reduce their ability to survive over the long term in their natural environment. Id.; see also Jack K. Sterne, Jr., Supplementation of Wild Salmon Stocks: A Cure for the Hatchery Problem or More Problem Hatcheries?, 23 Coastal Mgmt. 123, 140 (1995) (discussing the supplementation debate and concluding that supplementation should only occur "under carefully controlled conditions" in an "experimental, adaptive management framework"); ISG Report, supra note 7, at 400 (advising the Council "to resist attempts to implement supplementation on a large scale without adequate planning and review and without adequate monitoring and evaluation in place"). (252) 1994 Program, supra note 9, at 7-18. (253) Under the Northwest Power Act, the federal agencies that operate the hydroelectric system must, at "each relevant stage of decisionmaking," take the Council's program into account "to the fullest extent practicable." 16 U.S.C. [sections] 839b(h)(11)(A)(ii) (1994); see also Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1379 n.15 (9th Cir. 1994), cert. denied, 116 S. Ct. 50 (1995) (discussing the legislative history behind this provision of the Northwest Power Act). The Act also requires BPA to act "in a manner consistent with" the Council's program. 16 U.S.C. [sections] 839b(h)(10) (1994). BPA's General Counsel has suggested that this "consistency" provision does not require BPA to implement the Council's program. See Who Runs the River?, supra note 79, at 422 (remarks of Harvey Spigal). The Ninth Circuit seems to agree. Northwest Resource Info. Ctr., Inc. v. National Marine Fisheries Serv., 25 F.3d 872, 874 (9th Cir. 1994) (stating that BPA "must act consistently with the Council's program but in the end has final authority to determine its own decisions"). Nevertheless, these statutory provisions would seem to give the Council some degree of authority: [T]he Council possesses a good deal more authority than it thinks it has (or perhaps wants). The Act requires BPA to act consistently with the Council's program and obligates other federal water managers to take the program into account at every relevant stage of decision making to the "fullest extent practicable." If these are not iron-clad directives, they are nevertheless strong indications that Congress expected the program to be implemented. The truth is we do not know how much enforcement authority the Council possesses because the Council has chosen not to test its authority, ignoring program violations like the Corps' failure to implement the Water Budget or to satisfy its spill provisions.... [T]he Council's lack of enforcement authority is the product of its own self-fulfilling prophecy. Blumm & Simrin, Unraveling Parity, supra note 75, at 737-38 (citations omitted). But the General Counsel for the Council countered: The Council's authority in the fish and wildlife area is constrained; it can guide, but not command, federal river management. The investment of federal hydropower revenues to help fish and wildlife must be "consistent" with the Council's program, but . . . [BPA] actually writes the checks. The Council has no authority over fish and wildlife agencies, land managers, or irrigators. The Council is not toothless, but it cannot command and control. Volkman & McConnaha, supra note 171, at 1254 (citation omitted); see also Stephen Stuebner, NW Power Planners Reach Crossroads, The Oregonian, Aug. 21, 1995, at B1 (discussing the Council's lack of authority). Former Idaho Governor Cecil Andrus said that the Council "turned out to be a toothless tiger .... It's a public body that's been neutered. Either the agencies should listen to them or Congress ought to do away with them." Id. at B6; see also Michael V. McGinnis, On the Verge of Collapse: The Columbia River System, Wild Salmon and the Northwest Power Planning Council, 35 NAT. RESOURCES J. 63 (1995) (discussing, via a survey, the ambiguous authority of the Council). But see infra notes 271-279 and accompanying text, comparing enforcement authority under the Northwest Power Act with the ESA. (254) See Al Wright, Should the Courts Run the River?, 25 Envtl. L. 403, 405 (1995) ("In the short term, obviously, the river is going to be run by a section 7 Endangered Species Act biological opinion which results from the consultation process."); Harvey Spigal, The Implications of Salmon Recovery for the Bonneville Power Administration and the Region, 25 Envtl. L. 407, 407 (1995). (255) See infra Part V. (266) 850 F. Supp. 886, 900 (D. Or. 1994), vacated as moot, 56 F.3d 1071 (9th Cir. 1995) (discussed supra text accompanying note 126). (257) Dates used in connection with the BiOps refer to issuance dates. The 1993 BiOp remanded in Idaho Department of Fish and Game involved consultation on 1993 operations. See 1993 BiOp, supra note 49 (issued May 26, 1993). Prior to the decision in Idaho Department of Fish and Game, NMFS had issued the 1994 BiOp covering 1994-98 FCRPS operations and the juvenile transportation program. See 1994 BiOp, supra note 59 (issued Mar. 16, 1994). Following Idaho Department of Fish and Game, NMFS reinitiated consultation on the federal actions covered in the 1994 BiOp, producing the 1995 biological opinion, which also covered 1994-98 FCRPS operations. 1995 BiOp, supra note 11, at 7-10 (issued Mar. 2, 1995). (258) See 1993 BiOp, supra note 49, at 63-65 (concluding that FCRPS operations would not jeopardize the existence of the listed species). In 1992, NMFS reached a similar conclusion in its first BiOp for listed salmon species. See 1992 BiOp, supra note 103, at 50 (concluding that operation of the FCRPS would not jeopardize the existence of the listed species). NMFS released the 1994 BiOp, the first BiOp produced for 1994-1998 river operations, before the Idaho Department of Fish and Game decision but and discarded it in favor the 1995 BiOp following the court's decision; the 1994 BiOp also concluded that the listed salmon stocks would not be jeopardized. See 1994 BiOp, supra note 59, at 63-66 (concluding that operation of the FCRPS would not jeopardize the existence of the listed species). (259) 1995 BiOp, supra note 11, at 88-91. NMFS concluded that "without major modifications to the Snake and Columbia River darns, it is unlikely survivals can be sufficiently improved to ensure that the operation of the FCRPS does not impede survival and recovery of listed Snake River salmon." Id. at 81. This BiOp marked the first time that NMFS found operation of the FCRPS likely to jeopardize the continued existence of the listed salmon. In previous BiOps, NMFS declared that operation of the FCRPS was not likely to jeopardize the listed salmon, and then proposed "reasonable and prudent measures" for dam operators to minimize the incidental taking of the listed salmon. 50 C.F.R. [sections] 402.14(I) (1995); see 1994 BiOp, supra note 59, at 92-105; 1993 BiOp, supra note 49, at 90-100; 1992 BiOp, supra note 103, at 63-72; see also supra note 258; infra note 435. Although legally distinct, these earlier "reasonable and prudent measures" were actually quite similar in nature to the actions that NMFS now called for in the reasonable and prudent alternative in the new 1995 BiOp. See 1995 BiOp, supra note 11, at 91-93. Compare 1994 BiOp, supra note 59, at 92-105; 1993 BiOp, supra note 49, at 90-100; 1992 BiOp, supra note 103, at 63-72. (260) 1995 BiOp, supra note 11, at 91. NMFS listed six reasons why the proposed operation of the FCRPS in 199498 would likely jeopardize the continued existence of the listed salmon species and adversely modify their critical habitat: 1) the near expiration of sockeye populations, 2) the significant difference between the proposed action and NMFS's proposed recovery plan, 3) the major role FCRPS operations play in salmon mortalities, 4) the difficulty in making predictions that the species' biological requirements will be met over its life cycle, 5) the minor survival improvements promised in the proposed dam operations, and 6) the necessity of long-term system reconfigurations for achieving significant improvements in survival rates. Id. In the 1995 BiOp, NMFS also outlined the analytical process it followed during the [sections] 7 consultation. First, NMFS defined the "biological requirements" of the listed species. Id. at 11. These requirements are merely what is required for the species' continued existence or, more specifically, the species' survival and recovery. Id. Second, NMFS evaluated the relevance of the "environmental baseline" to the species' current status. Id. at 12. This baseline was at the heart of the dispute in Idaho Department of Fish and Game. &e Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 892-94 (D. Or. 1994) (holding NMFS's selection of a baseline period that included drought conditions and low run numbers to be arbitrary and capricious), vacated as moot 56 F.3d 1071 (9th Cir. 1995). According to NMFS, the baseline for the 1995 BiOp included "[t]he direct and indirect effects of the FCRPS' construction and the past manner of its operation." 1995 BiOp, supra note 11, at 33. Third, NMFS evaluated the effects of the proposed action on the listed species. Id. at 13. Fourth, NMFS determined whether the species could be expected to survive with an adequate potential for recovery under the effects of the proposed action, the environmental baseline, and any cumulative effects. Id. Finally, NMFS identified reasonable and prudent alternatives to proposed actions that it found likely to jeopardize the continued existence of the listed species. Id. at 14. (261) 1995 BiOp, supra note 11, at 91. (262) Id. at 91-93. (263) Id. at 112, 131. Because NMFS was unsure of the relative merits of transportation and spill, it purported to rely on both, thus "spreading the risks" between two principal methods of juvenile passage. Id. The Council also relied on this approach, but to a lesser degree than the BiOp. See supra notes 193-195, 232 and infra notes 337, 543. (264) Without spill or transportation, the vast majority of smolts would pass through the turbines. Few dams have bypass facilities. Even at those dams with juvenile bypass facilities, a large majority of smolts still pass through the turbines. 1995 BiOp, supra note 11, at 46-47. (265) Id. at 111. The NMFS BiOp was also briefly examined in Blumm, Reviving Parity, supra note 108, at 362-63. (266) 1995 BiOp, supra note 11, at 101-03. (267) NMFS did direct the TMT to coordinate its decisions with the state fishery agencies, tribes, Idaho Power Company, and other regional interests. Id. at 102. The states and tribes commented to NMFS that the states and tribes should "have a seat at the table" in making FCRPS operations decisions. See id. at 102. But NMFS stated that "[o]peration of the FCRPS is a federal responsibility, however, and cannot be delegated to nonfederal entities." Id. at 103. (268) See Letter from William Stelle, Jr., Regional Director, National Marine Fisheries Service., to John A. Kitzhaber, Governor, Oregon (May 15, 1996) (enclosing a May 7, 1996 NMFS memorandum altering the TMT structure). (269) 1995 BiOp, supra note 11, at 101. The federal agencies participating in the TMT had an April 1, 1995 deadline to agree to "operating guidelines" for the TMT. Id. (270) Id. at 101. Recommendations may also be made to BPA, which has the authority to make storage agreements with Canada. Id. at 101-02. (271) See supra note 253 for a discussion of the enforceability of the Council's program. (272) See Wright, supra note 254; Spigal, supra note 254. (273) Pyramid Lake Tribe of Indians v. United States Dep't of the Navy, 898 F.2d 1410, 1415 (9th Cir. 1990) (action agencies may not rely solely on BiOps to establish conclusively they have satisfied their ESA obligations; a decision to rely on a BiOp must be shown to not be arbitrary and capricious). (274) Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193-94 (9th Cir. 1988) (upholding the Secretary of the Interior's deviation from one reasonable and prudent alternative in a NMFS BiOp, where the Secretary gave a "well reasoned" explanation and adopted "alternative reasonably adequate steps" in an offshore oil and gas lease sale). (275) 16 U.S.C. [sections] 1540(g) (1994). (276) See, e.g., Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994) vacated as moot 56 F.3d 1071 (9th Cir. 1995) (discussed supra notes 109126 and accompanying text). (277) 16 U.S.C. [sections] 839f(e) (1994); see also 5 U.S.C. [subsections] 701-706 (1994). (278) See supra notes 127-165 and accompanying text. (279) See 1982 Program, supra note 76, at 13-2 (Nov. 1982) (interpreting the Northwest Power Act to require federal agencies to implement the Council's program or explain why implementation would not be "physically, legally, or otherwise practicable . . ., including a description of all possible allowances available to permit implementation"); see also Blumm, Implementing Parity, supra note 73, at 336-37 (discussing [sections] 1304(a)(5) of the Council's 1982 program). However, the Council without explanation softened this language in its 1994 amendments to the program. See 1994 Program, supra note 9, at 1-14 ("Ultimately, the Council expects federal project operators and regulators to implement program measures or explain in detail why they cannot do so."). (280) 1995 BiOp, supra note 11, at 104. (281) Id. (282) See 1994 Program, supra note 9, at 15-29; supra notes 183-189 and accompanying text. (283) See 1994 BiOp, supra note 59, at 5; 1993 BiOp, supra note 49, at 4. (284) 1995 BiOp, supra note 11, at 95. These interim limits were to be in place until August 31 of each year. Id. NMFS set interim limits for four reservoirs in the FCRPS: Grand Coulee (1,280 feet), Libby (2,439 feet), Hungry Horse (3,540 feet), and Dworshak (1,520 feet). Id. (285) 1995 BiOp, supra note 11, at 97-99. NMFS explained that it placed draft limits on reservoirs so that "operations for anadromous fish do not place at risk other portions of the Columbia Basin ecosystem and the resident fish and wildlife that rely on the reservoirs." Id. at 97-98. A BiOp must avoid jeopardizing the listed species; no other considerations apply. 16 U.S.C [sections] 1536(a) (1994); 50 C.F.R. [sections] 402.14(g)(4) (1995). The draft limits not only responded to nonsalmon considerations, but conflicted with measures that NMFS found necessary to avoid jeopardizing listed salmon--achieving target fish flows. Dam operators can, as a legal matter, respond to the needs of nonlisted species but, arguably, a BiOp should deal only with the needs of the listed species under consultation. The plaintiffs in American Rivers v. NMFS charged that the draft limits were imposed without any biological rationale and in violation of the ESA. American Rivers Motion, supra note 21, at 6, 32-34; see also infra notes 481-483. (286) 1995 BiOp, supra note 11, at 96. According to BPA, 10 to 11 MAF of water was used to increase flows during the drought years of 1992-94. Id. NMFS claimed that if the 1995 BiOp measures had been in effect for those years, 13 to 16 MAF would have been released for salmon. Id. (287) Id. at 96. NMFS stated that the measures in the new BiOp increased the likelihood of achieving flow targets in the Columbia River for both the spring and summer: a 25% increase for the spring, and a 90% increase for the summer. Id. (288) Id. at 92-94. (289) Id. at 112. NMFS required filling pools after the fall chinook began entering the Snake to provide sufficient water depth at adult fishways. Id. at 112-13. NMFS also allowed operations at elevations higher than one foot above MOP for approved research purposes. Id. at 112. (290) Id. at 113. (291) Id. at 113-14. NMFS called for John Day to be operated within a one to one-half foot range of MIP from April 20 to September 30 in 1995. Id. at 113. At John Day, MIP is higher than MOP by 5.5 feet. Telephone Interview with Carl Christianson, Study Manager, U.S. Army Corps of Engineers (Mar. 5, 1996). Then, beginning in March of 1996, NMFS directed the reservoir to be continuously operated at near MOP. 1995 BiOp, supra note 11, at 113. This was similar to the Council's recommendations for John Day. See supra notes 208-213 and accompanying text. NMFS also required an investigation of the feasibility of a future spillway crest drawdown. 1995 BiOp, supra note 11, at 113. NMFS noted that the John Day drawdown has been "particularly controversial" and was not recommended by the NMFS Recovery Team. Id. at 113-14. State and tribal fishery agencies supported the drawdown, however. Id. at 114. NMFS included the John Day drawdown in the BiOp because it would provide travel time benefits through John Day's large slack water pool, which produces one of the highest smolt predation rates anywhere in the Columbia Basin. Id. The reasoning concerning the John Day drawdown is instructive. BPA, an agency that found implied authority to fund a nuclear power program that has now saddled the region with a $7 billion debt, see Blumm, Hydroelectric Reritage, supra note 23, at 222-24, could find no authority to spend money on "economic mitigation;" that is, the costs of extending irrigation pipes and reconstructing boat ramps to ensure other river users would suffer no harm as a result of drawdowns. Memorandum from Harvard Spigal, General Counsel, Bonneville Power Administration, to Randall Hardy, Administrator, Bonneville Power Administration (Aug. 12, 1995); Memorandum from James Luce, Assistant General Counsel, and Phillip Key, Attorney, Bonneville Power Administration, to Randy Hardy, Administrator, Bonneville Power Administration (Mar. 9, 1995). Since the John Day drawdown to MOP was conditioned on such economic mitigation, 1995 BiOp, supra note 11, at 113, BPA's position left the measure in the hands of the congressional appropriations process, and the Corps (operator of John Day) failed to request sufficient appropriations. Although Congress did include $1 million for John Day drawdown during fiscal year 1996, the conference report directed the Administration to provide scientific justification for the project in any further requests for funding. See American Rivers Motion, supra note 21, at 16. In April 1996, the Corps wrote NMFS that it had deferred all planning regarding lowering John Day to MOP, and the agency's fiscal year 1997 budget request asked for no money for John Day drawdown work. See id.; see also notes 562-563. In December 1997, Will Stelle sent a letter to the Corps affirming NMFS' call for immediate drawdown to MOP and consideration of drawdown to spillway crest. NMFS Seeks Funding; Irrigators Detail Impacts, Northwest Salmon Recovery Report, Feb. 14, 1997, at 2. In the same month, the Corps made a request to Congress to reprogram $1.4 million for further study, Les Blumenthal, Proposal Leaves Salmon High and Dry, Seattle Post-Intelligencer Feb. 7, 1997, at A8, but did not request the funds necessary to implement drawdown. Thus, by narrowly interpreting their authority and manipulating the congressional appropriations process, BPA and the Corps have apparently succeeded in bringing to a halt implementation of a measure the Council's program estimated would decrease juvenile salmon travel time by 14% to 17%, the equivalent of releasing over 3 MAF of water in storage, without harming other river users. See 1995 BiOp, supra note 11, at 114. Such recalcitrance to changing the status quo, repeated persistently (and well out of public view), is a major reason why it is so difficult to implement an effective salmon restoration program. (292) 1995 BiOp, supra note 11, at 92-94. (293) Id. at 92-93. (294) Id. at 92. (295) Id. at 92, 116. NMFS stated no reason why it concluded that the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. [subsections] 4321-4370d (1994), should apply. NEPA requires federal agencies to prepare an environmental impact statement for all "major Federal actions significantly affecting the quality of the human environment." Id. [sections] 4332(C). Presumably, NMFS also felt it would need congressional authorization for any drawdown below MOP level, because below-MOP drawdowns may foreclose the operation of other federally authorized dam uses, such as navigation locks. (296) 1995 BiOp, supra note 11, at 93. NMFS did state that both surface collectors and drawdown could be implemented if the drawdown was to spillway crest level. Id. The surface collectors could be used for either transportation or to improve inriver conditions. Id. at 92. (297) Id. at 92-94. (298) In the program, the Council declared: The urgency of action has only been heightened by exceedingly poor returns of the past two years and the even worse projections for the coming several years. These constitute historical low numbers in the population and raise the specter of extinction.... These mortalities must be reduced.... ... The Council believes, on the basis of the best available scientific information, that these actions [recommended in the program] are likely to improve the survival of anadromous fish and that immediate survival improvements are needed or important components of the salmon runs will likely be lost to extinction. 1994 Program, supra note 9, at 5-2 to 5-3 (emphasis added). (299) See, e.g., Save our Wild Salmon Coalition, Give Wild Salmon a Fighting Chance (Oct. 1994) (action alert flyer distributed during the Council's 1994 amendment process); see also Blumm, Fulfilling Parity, supra note 1, at 124-31 (concluding that Congress's intent in enacting the "best available scientific knowledge" standard was not to hold fishery agencies and tribes to a high standard of scientific proof that might delay implementation of effective salmon recovery measures); Save Salmon First, The Oregonian, Sept. 18, 1994, at D2 ("This is no longer just a complex problem requiring greater study. This is a crisis. It requires strong measures, imposed now, not two years from now."); Ted Hallock, Delay on Salmon Plan Would Increase the Risk, THE OREGONIAN, Dec. 28, 1994, at D7 (editorial by recently retired Council member urging that science not be used as a delay in implementing salmon recovery measures). (300) See supra note 298 and accompanying text. The Northwest Power Act requires the Council to rely on the "best available scientific knowledge." 16 U.S.C. [sections] 839b(h)(6)(B) (1994). The NRIC decision also stated that the Northwest Power Act "placed a premium on prompt action, allowing decisions to be made on the best available scientific knowledge." Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1395 (9th Cir. 1994), cert. denied, 116 S. Ct. 50 (1995). (301) The ESA requires NMFS to "use the best scientific and commercial data available." 16 U.S.C. [sections] 1536(a)(2) (1994); see also Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 900 (D. Or. 1994), vacated as moot 56 F.3d 1071 (9th Cir. 1995). (302) See 1995 BiOp, supra note 11, at 81 ("NMFS has concluded that without mayor modifications to the Snake and Columbia River Dams, it is unlikely survivals can be sufficiently improved to ensure that the operation of the FCRPS does not impede the survival and recovery of listed Snake River salmon."); see also supra note 259. In the 1995 BiOp, NMFS listed the three alternative dam modifications identified in its proposed recovery plan for Snake River salmon: spillway crest drawdowns, natural river drawdowns, and surface collectors. 1995 BiOp, supra note 11, at 81. Also, unlike flow augmentation, spill, and transportation, drawdowns were completely absent from FCRPS operations proposed by the federal water managers, meaning that NMFS recommended drawdown of its own accord. See id at 38-81 (describing the effects of the proposed action). (303) See 1995 BiOp, supra note 11, at 94. NMFS stated that this information would also help to determine whether sufficient survival improvements could be achieved in FCRPS operations to contribute to the recovery of the listed species. Id. If not, NMFS concluded that survival improvements would have to be achieved in "other sectors," such as habitat improvements, hatchery actions, and harvest actions. Id. These "other sectors"--habitat, hatchery, and harvest actions--were recommended in NMFS's proposed recovery plan. Id. NMFS released a proposed recovery plan in March of 1995, shortly after the 1995 NMFS BiOp. See National Marine Fisheries Serv., Proposed Recovery Plan for Snake River Salmon (1995) [hereinafter Proposed Recovery Plan]; see also id. at ch. V, [sections] 2-4 (recommendations concerning these "other sectors"). Whether improvements in the FCRPS would lead to recovery of the listed species is a different question from whether the FCRPS, as operated, is jeopardizing the continued existence of those species. While the information gathered during the delay before implementing drawdowns may help to promulgate and implement a recovery plan under the ESA, NMFS completely failed to assess the effects of delaying action on the continued existence of the listed species. (304) 1995 BiOp, supra note 11, at 116. (305) See 1994 Program, supra note 9, at 5-5. (306) 1995 BiOp, supra note 11, at 104-05. (307) Id. at 109. (308) Id. at 105. (309) Id. (310) Id. If during any week the "unregulated weekly average flows" at Lower Granite are projected to be less than 100,000 cfs, the BiOp directed the water managers not to spill at that project. Id . If flows at Lower Granite are projected to be less than 85,000 cfs, under the BiOp no spill would occur at Lower Granite, Little Goose, and Lower Monumental--unless the TMT recommended otherwise. Id. (311) Id. (312) See supra note 219; 1994 PROGRAM, supra note 9, at 5-36, 5-40. (313) 1995 BiOp, supra note 11, at 105. (314) Id. During low flow conditions, spill at collector projects would be reduced (or eliminated) to increase the proportion of juveniles that could be transported. Id. (315) See supra notes 224-227 and accompanying text; 1994 PROGRAM, supra note 9, at 5-36, 5-40. (316) 1995 BiOp, supra note 11, at 106. At Snake River and lower Columbia dams, the BiOp set maximum levels of dissolved nitrogen, or "gas caps," at 12-hour averages of 115% of saturation (or an instantaneous level of 120%) at dam forebays, and 120% of saturation (or an instantaneous level of 125%) at dam tailraces. Id. NMFS intended to limit long-term exposure to 115%, id. at 106-07, despite requests for higher levels by state and tribal fishery agencies. Michele DeHart, Fish Passage Ctr., Summary of the 1995 Spring and Summer Juvenile Passage Season 7 (Oct. 1995). The BiOp allowed the gas caps to be adjusted downward to comply with state water quality standards. 1995 BiOp, supra note 11, at 106. The states of Idaho, Oregon, and Washington had established water quality standards for dissolved nitrogen of 110% of saturation under the Clean Water Act at the suggestion of the Environmental Protection Agency (EPA). DeHart, supra, at 7. NMFS requested--and the states subsequently granted--waivers of their 110% standard. Id. NMFS argued that the 110% standard was unnecessary because 1) the fish could compensate hydrostatically for the effects of higher dissolved gas levels, 2) the daily fluctuation in levels of dissolved gas limited possible detrimental effects on fish, and 3) NMFS believed that migration of salmon at low depths reduces the effects of dissolved gas. 1995 BiOp, supra note 11, at 107. NMFS rejected a higher dissolved gas level recommended by the state fishery agencies and tribes "because of concerns about the potential sublethal effects of gas bubble disease" for migrating juveniles. Id. at 107-08. The tribal restoration plan recommended a higher ceiling for dissolved gas. See infra notes 381, 422 and accompanying text. The results of tests in 1994 and 1995 seemed to justify this call for a higher ceiling See supra note 55 and accompanying text; infra note 548 and accompanying text. If the states had not granted the waivers, the BiOp probably would have had to give way to the state standards, since state water quality standards are also federal standards under the Clean Water Act. 33 U.S.C. [sections] 1313(c)(3) (1994). Under such a circumstance, the BiOp would have had to suggest other measures that would avoid jeopardy or declare that the continued existence of the species was jeopardized. (317) 1995 BIOP, supra note 11, at 105. (318) See supra notes 228-231 and accompanying text; 1994 Program, supra note 9, at 5-21. (319) 1995 BIOP, supra note 11, at 99; see also supra note 229 and accompanying text; 1994 Program, supra note 9, at 5-21. The NMFS BiOp stated that the Bureau "shall" continue to provide the water, but then allowed the Bureau to take "such actions as are necessary to ensure a high probability of providing provision of that volume by 1998." 1995 BIOP, supra note 11, at 99. The latter language makes the water purchase measure look less like an "immediate action to improve survival," and more like a hortatory suggestion that may or may not ever be achieved. See infra Part V for a discussion of actual river operations in 1995. (320) See supra note 228 and accompanying text; 1994 Program, supra note 9, at 5-21. (321) 1995 BIOP, supra note 11, at 99. (322) Id. at 100. (323) In the Snake River, the spring/summer chinook juvenile passage season is April 10 through June 20; in the Columbia, the spring passage season is April 20 through June 30. Id. at 105. The BiOp also called for spill during the juvenile fall chinook migration season (June 21 to August 31 in the Snake River and July 1 to August 31 in the Columbia River). Id. Specifically, it directed the federal water managers to spill at all noncollector projects to achieve 80% FPE. Id. No spill triggers applied. Dams with collection and transport facilities are Lower Granite, Little Goose, Lower Monumental, and McNary. Bruce, supra note 54, at 2 (graph). On the lower Snake and Columbia Rivers, Ice Harbor, John Day, The Dalles, and Bonneville have no collection facilities. See id. (324) 1995 BIOP, supra note 11, at 105. (325) Id.; see supra notes 309-310 and accompanying text. (326) 1995 BIOP, supra note 11, at 105. The spill triggers (the amount of flow at Lower Granite necessary to trigger the 80% FPE spill requirement) are as follows: for spill at Lower Granite Dam, 100,000 cfs; for spill at Little Goose and Lower Monumental, 85,000 cfs. Id. Seasonal average flows at Lower Granite exceeded 100,000 cfs only twice and 85,000 cfs just four times during the decade between 1985 and 1994. Id. at 40. The BiOp directed 80% FPE at all lower Columbia River projects from April 20 to June 30, 1995. Id. at 105. However, the BiOp did authorize the TMT to recommend spill when flow levels are below the spill triggers. Id. at 105. (327) Id. at 111. NMFS stated that the available empirical data indicated that transportation "has demonstrated benefits for Snake River spring/summer chinook and is likely to benefit Snake River fall chinook and sockeye salmon." Id. (328) Id. at 111. (329) Id. at 80. NMFS made this statement when comparing the BiOp to the proposed recovery plan. NMFS suggested that the proposed recovery plan contained more inriver improvements, such as significant increases in flow augmentation and increased spill at Columbia River dams. Id.; see also Proposed Recovery Plan, supra note 303, ch. 5, [subsections] 2 (containing the inriver improvements). (330) See supra note 323 for a list of the Snake River collector projects. (331) 1995 BIOP, supra note 11, at 110. (332) See supra text accompanying note 233; 1994 Program, supra note 9, at 546 to 547. Also, under the Council's program the state fishery agencies and tribes determine when "extremely adverse" conditions exist. See supra text accompanying note 234. (333) 1995 BIOP, supra note 11, at 112. (334) Id. at 112. At Lower Granite, at flows over 100,000 cfs, NMFS estimated that 56% of spring/summer chinook, 35% of fall chinook, and 48% of sockeye would be transported. Id. at 58. (335) See 1994 Program, supra note 9, at 547; supra text accompanying note 235. (336) See Ken Casavant, Salmon Recovery Plans: Some Fundamental Choices, 26 Envtl. L. 663, 665 (1996). The author, a member of the Council, explained the rationale behind NMFS's approach: From my perspective as a transportation economist, let us call that inriver movement a railroad, and let us say if we barge most of our commodity from point A to point B, does it make sense and how costly is it to start the engine and run the train full bore, even though the train is essentially empty? This is similar to the inherent conflict between transporting the majority of salmon, yet calling for flow augmentation, spill, and some other measures, when most of the fish have been removed from the river. I do not think any transportation economist would suggest that we conduct both programs simultaneously, unless we have an excess demand problem. Unfortunately, this is not the case with current salmon volumes. Id. (337) 1994 Program, supra note 9, at 5-6; see also supra notes 193-195, 263 and accompanying text. Compare supra notes 263-264 and accompanying text. However, in early 1996, Idaho Governor Phil Batt, with the help of Idaho Council members Mike Field and Todd Maddock, endorsed new measures and recommendations to aid in juvenile migration. Measures to Enhance Salmon and Steelhead Migration Success During 1996: State of Idaho Recommendations for a Balanced Resource Approach (Feb. 20, 1996) [hereinafter Idaho Recommendations]. These recommendations employed an interim "spread the risk" approach, id. at 2-3, under which flow augmentation would be separated from spill, so that the two techniques could be evaluated independently. See IDAHO Recommendations, supra at 56; Northwest Power Planning Council, Idaho Officials New Policy to Aid Snake River Salmon, UPDATE, Mar. 25, 1996, at 2 [hereinafter Council Update]. The policy also called for an Equitable balance" between inriver and out-of-river migration under high flow conditions (defined as flows over 100,000 cfs)--in contrast to 1995 river operations, when as many as 80% of juveniles were barged. Council Update, supra, at 2. The Idaho recommendations also endorsed the use of daily or weekly averages for flow targets, instead of the seasonal averages used by NMFS. Idaho Recommendations, supra, at i. This recommendation is even more ambitious than the Council's program, which used only monthly average flows in setting its flow targets. See supra notes 183-189 and accompanying text. The Idaho recommendations also declared that the NMFS BiOp's 100,000 cfs "spill trigger" at Lower Granite was too high. Idaho Recommendations, supra, at ii, 6; see also supra note 326 and accompanying text. Council Chairman John Etchart said that the Council would "look very, very carefully" at Idaho's proposal. Council Update, supra, at 2. (338) 16 U.S.C. [subsections] 1533(f)(1) (1994). A recovery plan must provide for the "conservation and survival of endangered species and threatened species" listed under the ESA. Id. (339) As of this writing, the proposed recovery plan, released in March 1995 by NMFS, shortly after the 1995 NMFS BiOp, was the most current version of the recovery plan. See Proposed Recovery Pan, supra note 303. An earlier draft recovery plan was also released. See Draft Recovery Plan, supra note 47. The draft recovery plan was written by the Snake River Salmon Recovery Team, which consisted of seven NMFS-appointed scientists, see id. at xvi, created pursuant to the ESA. 16 U.S.C. [subsections] 1533(f)(2) (1994). Members of the recovery team were not pleased with NMFS's decision to exclude some of the recovery team's recommendations from the proposed recovery plan. On May 31, Don Bevan, the head of the recovery team, sent a letter to NMFS outlining certain disagreements between the recovery team's recommendations and some of NMFS's changes to those recommendations which appeared in the proposed recovery plan. See Snake River Recovery Team Comments on Revised Plan, CLEARING UP, June 5, 1995, at 6 (reprinting portions of Bevan's letter). The team felt that no drawdown should occur until problems of downstream and upstream passage for both juveniles and adults were addressed. Id. Bevan also stated that the team did "not accept the Plan's wording that implies that there is a known flow-survival relationship." Id. Bevan also stated that he was "quite pleased" with the NRC study, supra notes 32, 47, because it was "another group of independent people coming up with the same conclusions and the same recommendations [as the Recovery Team]." Lynn Francisco, Study Rejects Drawdowns, Supports Barging, Encourages Biodiversity, Clearing Up, Nov. 13, 1995, at 8, 9. (340) 42 U.S.C. [subsections] 4332(C) (1994). The SOR was conducted jointly by BPA, the Corps, and the Bureau. See Bonneville Power Admin. Et Al., Columbia River System Operation Review: Final Environmental Impact Statement Summary 2 (Nov. 1995) [hereinafter SOR Summmary]. (341) See SOR Summary, supra note 340, at 1-5 (discussing the long history of the SOR process). (342) The "preferred alternative" in the SOR contained the same measures called for in the 1995 BiOp. See id. at 5-11, 34-37. While calling for John Day Dam (year-round) and the four lower Snake River projects (in the spring and summer) to be operated at MOP, the SOR did not commit to "deep drawdowns." Id. at 8. Like the NMFS BIOP, 1995 BIOP, supra note 11, at 92, 116, the SOR concluded that congressional authorization and funding would be a "necessary first step" for these deep drawdowns. SOR Summary, supra note 340, at 8. Also like the BiOp, the SOR gave no reason for its conclusion that congressional approval of reservoir drawdowns is necessary. Some in the region feel that the SOR, with its lengthy and costly process, was "worthless." Bob Baum, Costly 5-Year Study of Columbia: "Worthless," BEND Bulletin, Jan. 10, 1996, at B4. Others also felt that the SOR "virtually ignored" the advice of the tribes. See id. (343) Bonneville Power Admin. Et Al., Columbia River System Operation Review: Draft Environmental Impact Statement, Summary 10 (1994). (344) See supra note 253 and accompanying text. But cf. text accompanying supra notes 273-279 (arguing that the Council's program is no less enforceable than the NMFS BiOp). (345) See Who Runs The River?, supra note 79, at 349-424; see also supra notes 280-283, 288, 292-299 and accompanying text. (346) 1995 BIOP, supra note 11, at 130-35. NMFS used time periods of 24, 48, and 100 years and employed differing plans to determine the likelihood of achieving recovery levels for each time period. Id. NMFS had no plan for sockeye because of their "critically low population levels." Id. at 135. NMFS stated that spring/summer chinook had a 70% chance of reaching the threshold recovery level within 24 to 100 years. Id. at 131-32. This optimism is misleading, however, because there was only a greater than 50% chance of recovery in 48 years, id. at 132 (the chance for recovery within 100 years was 70% or higher), and chances for recovery within 24 years (by the year 2018) could not be predicted at a 70% probability under any of the NMFS plans, id. at 133. Chances of fall chinook reaching recovery levels were more optimistic: a 50-70% chance of being above the recovery level within 48 years (by 2042). Id. at 134. Delayed federal action and uncertain results have led some to question the role of the ESA in helping to restore salmon populations. One commentator envisioned four future scenarios concerning the requirements of the ESA: 1) federal preemption of the Council's program, 2) public backlash from this preemption that could jeopardize the effectiveness of the ESA, 3) a collapse of the listed salmon species because of a failure to develop and implement a recovery plan, or 4) amendment of the ESA to protect entire ecosystems and multiple species. McGinnis, supra note 253, at 91. (347) See infra Part V. (348) Tribal Plan, supra note 14. (349) Id. at 1-1. (350) Id. at 3-1 to 3-3. (351) See 1994 Program, supra note 9, at 4-4 (the goal of the Council's program is to double salmon and steelhead runs without the loss of biodiversity); see also supra text accompanying note 17. (352) The BiOp, of course, is aimed merely at ensuring that the existence of the three listed salmon species is not jeopardized or, if the existence is jeopardized by the operation of the hydrosystem, that a reasonable and prudent alternative is in place to ensure their continued existence. See 16 U.S.C.[subsections] 1536(a)(2), (b)(3)(a) (1994). (353) See 1994 Program, supra note 9, at 7-1. (354) See Tribal Plan, supra note 14, at vol. II (containing the 23 subbasin plans). (355) Id. at 14, 5B-2 to B5-3. (356) Id. The tribal plan also planned to restore all anadromous fish populations to their "historic abundance" within 200 years. Id. at 14, 5B-3. (357) Id. at 5B-37 to 5B-43. (358) Telephone Interview with Bob Heinith, Hydropower Coordinator, Columbia River Inter-Tribal Fish Commission (Mar. 5, 1996). (359) TRIBAL PLAN, supra note 14, at 5B-40. The tribes' endorsement of a volumetric approach, instead of fixed flows, seemed ironically inconsistent with the Ninth Circuit's decision in the NRIC case (in which the Yakama Indian Nation was a plaintiff), where the court questioned the efficacy of the volumetric "water budget" as a substitute for fixed flows. See Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1380, 1389, 1392-93 (9th Cir. 1994), cert. denied, 116 S. Ct. 50 (1995). (360) Tribal Plan, supra note 14, at 5B-40. (361) Telephone Interview with Bob Heinith, supra note 358. (362) Tribal Plan, supra note 14, at 5B-40. The tribal plan's spring flow targets would be implemented from April 15 to June 15. Id. This is a bit shorter than the period defined by the Council, which spanned from April 10 to June 20. 1994 Program, supra note 9, at 5-20. (363) Tribal Plan, supra note 14, at 5B-42. (364) Id. (365) Id. at 5B-38. See also id. at 5B-38 fig. 54, for a comparison of the tribal plan's recommended short-term and long-term flows with the regulated monthly flows of 1991-94. (366) Id. at 5B-41. (367) Id.; see supra note 199 and accompanying text. (368) 1994 Program, supra note 9, at 5-25. (369) Tribal Plan, supra note 14, at 5B-41. (370) Id. (371) See supra notes 208-213 and accompanying text. (372) See supra note 291 and accompanying text. (373) Tribal Plan, supra note 14, at 5B-42. (374) Id. at 5B43. The tribal plan estimated that, under the first long-term drawdown option, survival rates would increase 3 times; survival rates would increase 3.4 times under the second option; and 4 times under the third option. Id. (375) See supra note 219 and accompanying text. (376) See supra note 313 and accompanying text. (377) Tribal Plan, supra note 14, at 5B-40. (378) Id. at 5B-42 (379) 1994 Program, supra note 9 ,at 5-36. (380) 1995 BIOP, supra note 11, at 106. (381) Tribal Plan, supra note 14, at 5B-40 to 5B-41. The tribal plan recommended a ceiling of 120%-125% dissolved gas levels. Id. This was a higher ceiling than the 115% in the NMFS BiOP. See 1995 BIOP, supra note 11, at 106-08. In fact, NMFS specifically rejected the tribal plan's trigger because of concerns over "gas bubble trauma" in juvenile salmon. Id. at 107-08; see also supra note 316 and accompanying text. However, studies in 1994 and 1995 on the effects of high gas levels on fish seem to indicate that the tribes were justified in seeking a higher gas cap. See supra note 55 and accompanying text; infra note 548 and accompanying text. (382) See supra notes 232-239 and accompanying text. (383) Tribal Plan, supra note 14, at 5B-39. (384) P Id. (385) Id. at 5B-41 (386) Id. at 1-1. (387) See 1994 Program, supra note 9, at 15-116 to 15-120 (outlining tribal and state fishery agency transportation recommendations, listing which measures the Council adopted, and explaining why the Council did or did not accept certain recommendations). (388) Tribal Plan, supra note 14, at 5B-24. (389) Id. (390) Id. (391) Id. at iv-v. (392) See id. Vol. II. (393) Id. at 5B-35. (394) See 1994 Program, supra note 9, at 7-12. (395) Tribal Plan, supra note 14, at v. (396) Id. (397) See Tribal Plan, supra note 14, at 4-15. However, unlike the Council, NMFS is not required by federal law to give "due weight" to these recommendations. See 16 U.S.C. [subsections] 839b(h)(7)(1994) (Northwest Power Act's due weight provision). The tribal plan also recommended that NMFS reconsider its controversial use of the "evolutionarily significant unit" (ESU) in making ESA listing determinations. Id. at 5A-5. See generally Daniel J. Rohlf, There's Something Fishy Going On Here: A Critique of the National Marine Fisheries Sertice's Definition of Species Under the Endangered Species Act, 24 Envtl. L. 617 (1994) (discussing ESUs and the controversy surrounding NMFS's use of them). (398) See Tribal Plan, supra note 14, at 5C-1 to 5C-12. (399) Id. at 5C-3 to 5C-4. (400) Id. However, short-term measures for spring chinook may not be as successful because of the limited options for increasing very small populations quickly. (401) Id. at 4-27 n.135. (402) Id. The tribal plan, in a scathing footnote, criticized NMFS and its past practices. Given the proposed role of NMFS in recovery, it is appropriate to ask whether the agency and its predecessor, the Bureau of Commercial Fisheries, has played a constructive role, historically, in the recovery of naturally-spawning upriver stocks. In reviewing its role as regulator of ocean salmon fisheries, its authorship of the Lower Snake River Compensation Plan, and its administration of the Mitchell Act, NMFS has frequently exacerbated stock status. In addition, the work of the NMFS Seattle-based research program, with its focus on captive broodstock technology and its massive research contracts with the Corps of Engineers, has compromised itself as an honest broker on production and hydro operahons issues. Id . (403) Id. at 1-4. (404) See 1994 Program, supra note 9, at 4-4 to 4-9; see also supra note 181 and accompanying text. Note that the Northwest Power Act calls for the Council to provide for both "improved survival" at the dams and "flows of sufficient . . . quantity . . . to improve production, migration, and survival" of the salmon. 16 U.S.C. [subsections] 839b(h)(6)(E)(i)-(ii) (1994). (405) See 1995 BIOP, supra note 11, at 91. NMFS stated that another goal of the BiOp was "to fulfill the United States' commitment to uphold tribal treaty fishing rights." Id. The limited scope of the BiOp also explains why (406) 1994 Program, supra note 9, at 5-20; see also supra text accompanying note 183. (407) 1995 BiOp, supra note 11, at 104; see also supra text accompanying note 280. (408) Tribal Plan, supra note 14. Under the tribal plan, this water would be managed by state and federal fishery agencies and the tribes. Id. at 5B-40; see also supra text accompanying note 360. The tribal plan did not explain how this method of flow improvement differed from the Council's prior practice under the Water Budget. See supra notes 76-82 and accompanying text. (409) Both the Council's program and the tribal plan called for a three-year scheme of monthly flow targets at The Dalles Dam, beginning at 300,000 cfs, decreasing to 260,000 cfs in the second year, and ending at 220,000 cfs. 1994 Program, supra note 9, at 5-29; Tribal Plan, supra note 14, at 5B-40; see also supra notes 187-188, 362. NMFS called for flow targets of 220,000 to 260,000 on the Columbia, but this target was set for McNary Dam instead of The Dalles. 1995 BiOp, supra note 11, at 104. See supra note 280 and accompanying text. (410) See Tribal Plan, supra note 14, at v; see also id. at vol. II (containing the entire subbasin plan). (411) See 1994 Program, supra note 9, at 4-5, 7-4 to 7-5. (412) 1994 Program, supra note 9, at 5-21; see also supra notes 228-231 and accompanying text. (413) 1995 BiOp, supra note 11, at 99-100; see also supra notes 319-322 and accompanying text. (414) See supra notes 359-360, 408 and accompanying text. (415) The Council recommended drawing down Lower Granite in 1995 and 1996 for the spring migration. 1994 Program, supra note 9, at 5-25 to 5-26; see also supra notes 199-200 and accompanying text. The tribes called for a year-round drawdown of Lower Granite in 1996. Tribal Plan, supra note 14, at 5B-41; see also supra notes 366-367 and accompanying text. (416) 1995 BiOp, supra note 11, at 112; see also supra note 289 and accompanying text. Under the BiOP, the dams would be operated at this level until the 1999 decision on future drawdowns. 1995 BiOp, supra note 11, at 112. The Council's program and the tribal plan also recommended drawdown measures during this period. The Council called for Little Goose to be drawn down to near spillway level beginning in 1999 and continuing during the spring migration seasons of each year until 2002. 1994 Program, supra note 9, at 5-26; see also supra text accompanying notes 205-206. The tribes recommended operating the three remaining Snake River projects at MOP during the spring migration. Tribal Plan, supra note 14, at 5B-41; see also supra text accompanying note 369. (417) The Council and NMFS called for John Day to be operated at near MOP level, see supra notes 208, 291 and accompanying text, while the tribes recommended John Day to operate at MOP level, see supra text accompanying note 370. This rather modest drawdown may not even occur. See supra note 291, infra notes 562-563, 616, 720 and accompanying text. (418) See supra notes 199-205 (Council's seasonal drawdowns), 366-374 (tribal permanent drawdowns) and accompanying text. (419) 1995 BiOp, supra note 11, at 92-94; see also supra note 288 and accompanying text. (420) 1995 BiOp, supra note 11, at 105; 1994 Program, supra note 9, at 5-36, 5-40; see also supra notes 219, 313 and accompanying text. (421) Tribal Plan, supra note 14, at 5B-42. The tribes called for 80% FPE for the short-term, but would increase it to 90% FPE over the long-term. Id. at 5B-40. See supra note 378 and accompanying text. (422) See supra notes 225-227, 316-317, 381 and accompanying text. NMFS and the tribes both set maximum ceilings of dissolved gas levels. NMFS's ceiling was 115%, 1995 BiOp, supra note 11, at 106-08. The tribes would set a higher standard of 120%-125%. Tribal Plan, supra note 14, at 5B-40 to 5B-41. In fact, NMFS specifically rejected the tribes' recommended ceiling. 1995 BiOp, supra note 11, at 107-09; see also supra notes 316, 381 and accompanying text. (423) 1994 Program, supra note 9, at 5-47; see also supra notes 232-235 and accompanying text. (424) 1994 Program, supra note 9, at 5-46; see also supra notes 238-239 and accompanying text. (425) Tribal Plan, supra note 14, at 5B-41; see also supra note 385 and accompanying text. Like the Council, the tribes felt transportation could not be part of a long-term effort to improve salmon survival. Tribal Plan, supra note 14, at 5B-39. (426) See Tribal Plan, supra note 14, at 5B-39; see also supra text accompanying note 384 for the tribes' rationale. The Council, as part of its mainstem experiment, limited the number of juveniles to be transported in an effort to have roughly the same number of fish passing both inriver and via the barges. 1994 Program, supra note 9, at 5-47; see also supra notes 193-197 and accompanying text. (427) See supra notes 326-329 and accompanying text. (428) 1995 BiOp, supra note 11, at 112; see also supra notes 333-334 and accompanying text. (429) See supra notes 326-335 and accompanying text. (430) See supra notes 254, 343 and accompanying text. (431) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 900 (D. Or. 1994), vacated as moot, 56 F.3d 1071 (9th Cir. 1995). (432) See also Charles Ray, 1995 River Operations Under the Endangered Species Act: continuing the Salmon Slaughter, 26 Envtl. L. 675, 678-80 (1996). (433) See supra notes 258-262 and accompanying text. (434) The Council, in its 1995 annual report, stated: Implementation is largely conducted through the management actions of tribal, state, and federal natural resource agencies. Bringing these agencies together with the funding sources to implement action in an orderly and efficient manner has been difficult over the life of the program.... Little progress was made in 1995 in improving the coordination of implementation. Bonneville suspended monthly meetings with implementors and other involved parties to review and coordinate implementation because participation by fishery managers and others had dwindled. Some managers questioned whether the Bonneville meetings were the most effective opportunity to influence implementation. 1995 Annual Report, supra note 179, at 6. (435) Although the action agency has the ultimate responsibility in carrying out its [sections] 7 ESA duties, see supra notes 273-274 and accompanying text, in order to determine whether an agency has met its duties, courts defer to the opinion of the expert agency in the form of the BiOp, not the action agency. See, e.g., Tribal Village of Akutan v. Hodel, 859 F.2d 651, 659 (9th Cir. 1988) (quoting Village of False Pass v. Watt, 565 F. Supp. 1123, 1160-61 (D. Alaska 1993), aff'd, 733 F.2d 605 (9th Cir. 1984) ("The agency is not required to adopt the alternatives suggested in the BiOp; however, [i]f [the Secretary] deviates from them, he does so subject to the risk that he has not satisfied the standard of section 7(a)(2).")); Roosevelt Campobello Int'l Park Comm'n v. EPA, 684 F.2d 1041, 1048-52 (1st Cir. 1982) (overturning EPA's issuance of an NPDES permit in light of a jeopardy BiOp); Lone Rock Timber Co. v. U.S. Dep't of the Interior, 842 F. Supp. 433, 440 (D. Or. 1994) (Although the action agency is not bound by findings of the biological opinion, courts give great deference to the expertise of the agency performing the BiOp, and an agency that attempts to proceed in the face of a critical BiOp will almost certainly be found to have acted arbitrarily and capriciously and contrary to law.). In addition to section 7 duties, the ESA prohibits unauthorized "takes" of a listed species by any person, including federal agencies. 16 U.S.C. [sections] 1538 (1994); see id. [sections] 1532(19) (including "harm" in the definition of take). BiOps often contain "incidental take statements" that permit the taking of a specified number of the listed species when the takes are incidental to an otherwise lawful activity and do not jeopardize the species. Id. [sections] 1536(b)(4)(C); 50 C.F.R. [sections] 402.14(i) (1995); id. [sections] 17.22(b); see also 1995 BiOp, supra note 11, at.159-66 (allowing up to 86% mortality for juvenile Snake River sockeye and up to 100% mortality for juvenile spring/summer chinook). Incidental take statements must also contain "reasonable and prudent measures" necessary or appropriate to minimize the number of takes, 50 C.F.R. [sections] 402.14(i)(1)(ii) (1994), and must tee accompanied by NEPA documentation. Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir. 1996). (436) See Blumm & Simrin, Unraveling Parity, supra note 75, at 707-08 n.299 (reprinting the 1991 flow proposal). (437) National Marine Fisheries Serv., Northwest Region, Basis for Flow Objectives for Operation of the Federal Columbia River Power System passim (Feb. 1995) [hereinafter NMFS Flow Study]. (438) As discussed infra at notes 504-510 and accompanying text, the federal water managers often cited nitrogen supersaturation limits as the reason for withholding storage water necessary to meet flow targets. (439) Pamela Russell, Water Year Just Ended Was First Good One in Four Years, Clearing Up, Aug. 14, 1995, at 9; Fish Passage Ctr., Weekly Report #95-27, at 1 (Sept. 22, 1995) (reporting precipitation above The Dalles at 148% above average for the October 1995 to September 1995 water year). January through July 1995 runoff above The Dalles was 104 MAF, 98% of the 30-year average, up from 1994's 75 MAF, which was just 71% of average. Id. (440) Instead of fixing flow targets, the BiOp specified a range of flows and an established formula for fixing the ultimate flow target depending on established water forecasts. For example, the Snake River spring flow target ranged from 85,000 to 100,000 cts at Lower Granite Dam, depending on the April runoff volume forecast. 1995 BiOp, supra note 11, at 104. (441) Id. (442) Fish Passage Ctr.: Annual Report, Summary of the 1995 Spring and Summer Juvenile Passage Season 3 (Oct. 1996) [hereinafter 1995 Annual Report]. (443) Id. at 4. (444) Id. (445) Fish Passage Ctr., Weekly Report #95-9, at 1 (May 5, 1995). (446) Id. at 1-2. This figure represents total smolts, including hatchery smolts and steelhead. (447) 1995 Annual Report, supra note 442, at 4; see Fish Passage Ctr., Weekly Report #95-9, at 1 (May 5, 1995). (448) Fish Passage Ctr., Weekly Report #95-14, at 1 (June 9, 1995). (449) Id. at 2-3. (450) 1995 BiOp, supra note 11, at 104. (451) 1995 Annual Report, supra note 442, at 3. (452) Id. at 6. (453) Id. at 9 fig. 5 (454) Fish Passage Ctr., Weekly Report #95-9, at 1 (May 5, 1995). (455) See, e.g., Fish Passage Ctr., Weekly Report #95-10, at 1 (May 12, 1995) (indicating 96% of average runoff to date at The Dalles). (456) Fish Passage Ctr., Weekly Report #95-15, at 1 (June 16, 1995). (457) For example, on May 18, chinook and steelhead migration peaked with 144,000 and 89,000 fish, respectively. Fish Passage Ctr., Weekly Report #95-11, at 4 (May 19, 1995). Flows from May 13 through May 18 climbed from 224,000 cfs to 288,000 cfs. Id. But, on May 21, flows dipped to 232,000 cfs. Fish Passage Ctr., Weekly Report #95-12, at 7 (May 26, 1995). Fishery agencies and tribes had requested flows of at least 249,000 cfs, with weekend flows of at least 80% of weekday flows. Fish Passage Ctr., Weekly Report #95-10, at 1 (May 12, 1995); Fish Passage Ctr., Weekly Report #95-11, at 1 (May 19, 1995). (458) 1995 Annual Report, supra note 442, at 9 fig. 5. However, during June, McNary saw significant numbers of subyearling hatchery chinook, Fish Passage Ctr., Weekly Report #9517, at 3 (June 30, 1995), which no doubt benefitted from the high flows. (459) 1995 BiOp, supra note 11, at 104. (460) 1995 Annual Report, supra note 442, at 3. (461) Id. at 4-5 (462) American Rivers Motion, supra note 21, at 5. (463) 1995 Annual Report, supra note 442, at 4, 8 fig. 3. (464) Id. at 8 fig. 3 (465) For example, in the week of June 23-29, flows at Lower Granite averaged 91,900 cfs. Fish Passage Ctr., Weekly Report #95-17 (June 30, 1995). During late June, smolt migration generally averaged 3,000 fish, with hatchery steelhead comprising the majority of migrants. Id. at 9-10. (466) Wild sub-yearling chinook peaked at 960 fish on July 28. Fish Passage Ctr., Weekly Report #95-22 (Aug. 4, 1995). Flows during the week of July 28 through August 3 averaged 46,600 cts. Id. Flows for the week of August 3-10 averaged 42,500 cfs, 23% below target. Fish Passage Ctr., Weekly Report #95-23 (Aug. 11, 1995). Daily wild sub-yearling chinook averaged close to 400 fish. See id. at 7. (467) See infra notes 504-510 and accompanying text. (468) 1995 BiOp, supra note 11, at 95 (establishing a 1520 foot limit at Dworshak). Dworshak had an elevation of 1530 feet by the end of August. DEHART, supra note 316, at 3. (469) 1995 Annual Report, supra note 442, at 3. Dworshak continued to be drafted after August 31, 1995 to benefit migrating adults and juveniles. Fish Passage Ctr., Weekly Report #95-26, at 1 (Sept. 8, 1995). (470) Id. at 5. (471) NMFS Flow Study, supra note 437, at 13. (472) American Rivers Motion, supra note 21, at 5. (473) 1995 Annual Report, supra note 442, at 6-7, 9 fig. 5. (474) Id. From July 3-6, smolt passage peaked at an average of 653,000 fish per day. Fish Passage Ctr., Weekly Report #95-18, at 3 (July 7, 1995). Flows averaged 222,300 cfs at McNary during the same four-day period, over 10% above the target. See id. at 5. (475) 1995 BiOp, supra note 11, at 95-96, 102. (476) Id. at 96. (477) Id. at 95. The BiOp stated that winter operating constraints and draft limits were interim. Id. at 96. However, the goal of achieving full reservoirs on June 30 appears permanent. (478) Id. at 95, 102. This goal was to be achieved by refilling reservoirs to April 20 flood control levels. Id. at 95. The BiOp stated minimum confidence levels for April 20 refill of 75% at Libby and Hungry Horse, 85% at Grand Coulee beginning January 1, and 90% at Albeni Falls. Id. (479) Id. at 96. If the 1995 BiOp had been in place between 1992 and 1994, the reservoirs would have released 13 to 16 MAF in the spring and summer, instead of the 10 to 11 MAF they actually released. Id.; see also note 286. (480) 1995 BiOp, supra note 11, at 95. (481) Id. at 97-99; see also supra note 285 and accompanying text. (482) Because the BiOp phrased the draft limits as absolute constraints and the flow measures as "targets," the draft limits appear to take precedence. See 1995 BiOp, supra note 11, at 95, 100-04. (483) See American Rivers Motion, supra note 21, at 6-7 (citing Al Wright, Review of Columbia River Operating Criteria (Apr. 1996) (report commissioned by NMFS that examined FCRPS operation under the BiOp)); see also id. at app. C. The flow target for the Snake River in August virtually would never be met. Id. at 7 n.3. (484) 1995 BiOp, supra note 11, at 96,102. The BiOp set no priority between achieving June 30 refill and providing the water necessary to achieve spring flow targets, should water supplies be insufficient to achieve both. DEHART, supra note 316, at 1. (485) See supra note 483 and accompanying text. (486) On June 30, 1995, Libby was 19 feet below full; Hungry Horse was 12 feet below full; Grand Coulee was 3 feet below full. 1995 Annual Report, supra note 442, at 6. (487) Id. at 7 tbl. 7. (488) Id. For Libby and Hungry Horse, the BiOp called for drafts up to 20 feet between June 30 and August 31. See id. Yet, over this period, water elevations increased 14.2 feet at Libby and 4.8 feet at Hungry Horse. See id. The BiOp called for a draft of up to 10 feet at Grand Coulee; instead, only a 7.1 foot draft occurred. See id. (489) See infra notes 504-510 and accompanying text. (490) 1995 Annual Report, supra note 442, at 7. (491) Lynn Francisco, Battle over Montana Reservoirs Heats Up as Draws Continue, Clearing Up, Aug. 7, 1995, at 1. (492) Id. at 6. The agreement, reached July 10, 1995, called for releases from B.C. Hydro's Arrow Reservoir to make up the difference between the TMT recommendations and actual Libby outflows. Technical Management Team Meeting Minutes 1 (July 19, 1995). (493) Id. (494) Montana, U.S. Reach Water Release Pact, The News Tribune (Tacoma, Wash.), Aug. 6, 1995, at B3. The plaintiffs in American Rivers v. NMFS No. 96-384MA (D. Or. filed Mar. 13, 1996) charged that the terms of this agreement were never publicly disclosed. American Rivers Motion, supra note 21, at 11. (495) Pamela Russell, Montana Wins Reprieve for Libby, Hungry Horse; Spill Continues, Clearing Up, Aug. 14, 1995, at 6. (496) Id. Montana officials expressed concern that releasing only cold water from deep in the reservoir would encourage lake trout to migrate downriver, harming sensitive bull trout populations. Montana, U.S. Reach Water Release Pact, The News Tribune (Tacoma, Wash.), Aug. 6, 1995, at B3. In addition, as a result of an agreement with NMFS, BPA shifted 72,000 acre-feet to be released from Hungry Horse from August to September. Fish Passage Ctr., Weekly Report #95-26, at 1 (Sept. 8, 1995). (497) Fish Passage Ctr., Weekly Report #95-24, at 1 (Aug. 18, 1995). Grand Coulee reached its minimum draft level the first week of August, leaving Montana reservoirs as the only source of flow augmentation. Lynn Francisco, Dworshak, Libby, Hungry Horse Continue to Provide Replacement Flows, Clearing Up, July 31, 1995, at 1. In addition, the Corps declined to draft Dworshak to help achieve summer target flows in the Columbia. DEHART, supra note 316, at 6. Agreements between BPA and BC Hydro, its Canadian counterpart, regarding nontreaty storage space also negatively affected summer fish flows. Id. By June, it appeared that the McNary spring flow target would be exceeded. Consequently, BPA and BC Hydro agreed to allow BC Hydro to store water in nontreaty storage space in June for delayed releases until early August--or so it was generally understood. Id. at 5-6; Fish Passage Ctr., Weekly Report #95-21, at 1 (July 28, 1995); Rob Lothrop & Jim Weber, 1995 River Operations: Failing to Implement the National Marine Service's Biological Opinion 5 (1995) (on file with the Northwest Water Law & Policy Project, Northwestern School of Law of Lewis & Clark College). However, BC Hydro maintained control over the timing of the release of that storage water throughout August, as well as retaining half the power benefits of that water. DEHART, supra note 316, at 5. Because BPA failed to request storage releases earlier, BC Hydro chose to delay storage releases until late August, so as to coincide with higher demand for hydropower. Id. at 6; Fish Passage Ctr., Weekly Report #95-21, at 1 (July 28, 1995). The tribes strongly objected to the agreement at the time, but were unable to officially voice their opinions because they were excluded from discussions. Lothrop & Weber, supra, at 9-10. For a brief discussion of the "Non-treaty Storage Agreement" between BPA and BC Hydro, see Blumm & Simrin, Unraveling Parity, supra note 75, at 709-10. (498) Libby ended the 1995 migration season with 385,000 acre-feet of water above the draft limit. 1995 Annual Report, supra note 442, at 7 (explaining that on August 31, Libby was 15 feet over the limits set in the BiOp; Hungry Horse was 12 feet over); supra note 488. (499) Even before the agreement with Montana went into effect, the TMT agreed to keep flows at McNary just above 150,000 cfs, 50,000 cfs short of the target, apparently due to the exchange with BC Hydro. Lynn Francisco, Battle over Montana Reservoirs Heats Up as Draws Continue, Clearing Up, Aug. 7, 1995, at 1, 6; see also supra note 284 and accompanying text. (500) 1995 BiOp, supra note 11, at 95. During the spring and summer smolt migration seasons, NMFS limited Dworshak drafts to an elevation of 1520 feet. Id. Unless flood control needs conflicted, the BiOp restricted outflows at Dworshak to minimum within system restraints beginning September 1. Id. (501) Id. at 96 (discussing the purpose of fill measures for upper Columbia Basin reservoirs). (502) Id. at 101. The BiOp called for drafts to elevation 2069 feet in May, 2067 feet in July, and 2059 feet in August or September, passing inflow without refill throughout the season. Id. (503) See American Rivers motion, supra note 21, at 9-10 (citing Letter from Mark W. Maher, Manager, Power Supply, Bonneville Power Administration, to James Collingwood, General Manager, Power Production, Idaho Power Company 1-2 (July 20, 1995)); see also id. at app. G. (504) 1995 Annual Report, supra note 442, at 4. (505) Id. at 12. (506) Id. Controlled spill at Ice Harbor required flows of approximately 90,000 cfs. Fish Passage Ctr., Weekly Report #95-10 (May 12, 1995). State water quality standard waivers granted by each state allowed tailrace nitrogen levels of 120% over a 12-hour average, with an instantaneous limit of 125%. 1995 Annual Report, supra note 442, at 11. (507) 1995 Annual Report, supra note 442, at 12. During the last week of May, the Corps radically altered river operations in an attempt to stop water quality violations at Ice Harbor and McNary, the next dam below Ice Harbor. Id. These efforts included major reductions in spill at Lower Granite, Little Goose, and Lower Monumental; reduction of Dworshak outflows to minimum; operating all turbines outside the 1% peak efficiency required by the BiOp; filling Snake River projects to the upper one foot of their operating ranges; and modifying spillway openings. Id. (508) MICHELE DEHART, Fish Passage Ctr., Summary of the 1995 Spring and Summer Juvenile Passage Season (Oct. 13, 1995). For example, on May 8, the Corps unilaterally reduced outflow from Dworshak by more than two-thirds, from 23,000 cfs to 9,300 cts. Fish Passage Ctr., Weekly Report #95-10, at 1 (May 12, 1995). Fishery agencies and tribes had requested Dworshak outflows of 23,000 cfs to help achieve flows of 110,000 cts at Lower Granite. Id. (509) 1995 Annual Report, supra note 442, at 12. (510) Id. at 7 tbl. 7. (511) The BiOp called for Brownlee augmentation only if necessary to meet Lower Granite flow targets. 1995 BiOp, supra note 11, at 101. Although the BiOp called for coordination between the TMT and the Idaho Power Company, id., an agreement between BPA and the Bureau of Reclamation to shape water for fish flows was not reached until June 30, 1995. Fish Passage Ctr., Weekly Report #95-6, at 1 (Apr. 14, 1995); Technical Management Team Meeting Minutes 1-2 (July 5, 1995); see also 1995 Annual Report, supra note 442, at 2 (discussing Brownlee operations). (512) See Fish Passage Ctr., Weekly Report #95-12, at 1 (May 26, 1995) (noting that Idaho Power planned to fill Brownlee to 2076 feet and then pass inflow). The BiOp called for drafts of Brownlee to 2069 feet during May, passing all inflow, and drafts to 2059 feet in August or September as determined by the TMT, if necessary to meet the Lower Granite flow objectives. 1995 BiOp, supra note 11, at 101. Refill of Brownlee could begin in September. Id. Brownlee passed between 35,000 and 40,000 cfs in June, and between 16,000 and 30,000 cfs in the first three weeks of July. (513) For June flows, see Fish Passage Ctr., Weekly Report #95-14, at 1 (June 9, 1995); Fish Passage Ctr., Weekly Report #95-15, at 1 (June 16, 1995); Fish Passage Ctr., Weekly Report #95-16, at 1 (June 30, 1995). See also Fish Passage Ctr., Weekly Report #95-12 (May 26, 1995) (noting inflow of approximately 38,000 to 40,000 cfs). For July flows, see Fish Passage Ctr., Weekly Report #95-18, at 1, 5 (July 7, 1995); Fish Passage Ctr., Weekly Report #95-19, at 1, 6 (July 14, 1995); Fish Passage Ctr., Weekly Report #95-20, at 1, 4 (July 21, 1995). (514) Fish Passage Ctr., Weekly Report #95-21, at 1 (July 28, 1995). Idaho Power reduced augmentation to 18,000 cfs due to recreation and BPA load fluctuation concerns. Id. Augmentation ended August 8, 1995, to allow refill to 2058.5 feet, half a foot below the draft level specified in the BiOp. Fish Passage Ctr., Weekly Report #95-23 (Aug. 11, 1995). Environmentalists have called upon NMFS to enter into [sections] 7 consultation with FERC regarding Brownlee operations, relying on references made by NMFS in its BiOp. Bee American Rivers Motion, supra note 21, at 9 (citing 1995 BiOp, supra note 11, at 101, 165). (515) 1995 BiOp, supra note 11, at 99-100. (516) Id. The Northwest Power Planning Council's 1992 Strategy for Salmon required the same 427,000 acre-feet. However, the 1994 amendments to the Council's program called for the purchase of an additional million acre-feet. See supra notes 228-231 and accompanying text. In contrast, the BiOp vaguely called for "an additional amount of water, in coordination with the states of Idaho and Oregon, as may be necessary to further reduce human-caused mortality of endangered salmon in the Snake River." 1995 BiOp, supra note 11, at 99; see also supra notes 320-322 and accompanying text. By 1998, the BiOp requires the Bureau to have taken the measures necessary to "ensure a high probability" of continued provision of 427,000 acre-feet. 1995 BiOp, supra note 11, at 99. (517) 1995 BiOp, supra note 11, at 100. (518) The ESA requires agencies to employ "the best scientific and commercial data available." 16 U.S.C. [sections] 1536(a)(2) (1994); see also supra note 301. (519) 1995 BiOp, supra note 11, at 99. The BiOp suggested dry-year leases, land fallowing, and purchases of storage space. Id. The Bureau and Idaho claimed that water additional to the 427,000 acre-feet could be obtained only by condemnation, a measure beyond the terms of the BiOp. Id. at 100. If the Bureau failed to secure additional water, the BiOp called for reinitiation of section 7 consultation. Id. (520) American Rivers Motion, supra note 21, at 8. (521) See Fish Passage Ctr., Weekly Report #95-6, at 1 (Apr. 14, 1994) (noting plans to deliver 427,000 acre-feet); Letter from Path Llewellyn, Program Manager, Lands and Recreation, Bureau of Reclamation, to Michael C. Blumm (Nov. 20, 1995) [hereinafter Llewellyn Letter] (on file with authors). (522) Llewellyn Letter, supra note 521. The Bureau purchased a total of 22,396.09 acre-feet in 1995. It rented most of the 427,000 acre-feet from state water banks, at a cost of $2,332,586. Id. Curiously, the state of Idaho paid only $1 million for 800,000 acre-feet for rental water to replenish depleted aquifers. Fish Passage Ctr., Weekly Report #95-6, at 1 (Apr. 14, 1995). The Bureau is pursuing applications with the Idaho Department of Water Resources to amend its state water permits, authorizing permissible changes of use to include fish flows. Llwellyn Letter, supra note 521. (523) United States Bureau of Reclamation, Pacific Northwest Region, State of Idaho Department of Water Resources Application for Amendment of a Permit, Permit No. 63-3618 (May 15, 1995) (promising not to release any water greater than that needed to achieve 427,000 acre-feet). (524) 1995 Annual Report, supra note 442, at 4-7 (comparing 1993, 1994, and 1995 spring and summer flows on the Snake and Columbia). However, Snake River spring flows were higher in 1993, despite a lower runoff in that year. Id. at 4. (525) See supra note 323. (526) 1995 BiOp, supra note 11, at 105. (527) Id. at 45; see supra note 220 and accompanying text. (528) 1995 BiOp, supra note 11, at 105; see supra note 326. (529) See supra note 316 for an explanation of "gas caps." (530) See supra notes 54-55 and accompanying text. (531) 1995 BiOp, supra note 11, at 105; see also supra note 317 and accompanying text. (532) See supra notes 313-316 and accompanying text for a discussion of the 80% FPE requirement in the BiOP. (533) 1995 Annual Report, supra note 442, at 12. Ice Harbor routinely exceeded total dissolved gas levels of 130%. Id. at 14. (534) Id. at 12. (535) Id. The monthly FPE averages at Snake River dams remained between 50% and 60%. Id. tbl. 1. (536) See American Rivers Motion, supra note 21, at 13-14. (537) Fish Passage Ctr., Weekly Report #95-9 (May 5, 1995). Approximately 910,000 smolts arrived at Lower Granite on May 2. Id. (538) See Ray, supra note 432, at 677-78. (539) DeHart, supra note 316, at 7; 1995 Annual Report, supra note 439, at 11-12; Technical Management Team, Meeting Minutes (May 4, 1995). (540) Bruce, supra note 54, at 1-2; see 1995 BiOp, supra note 11, at 111 (describing transportation as an experimental approach and stating NMFS's intent to allow sufficient inriver migration so as to compare transportation and spill). (541) DeHart, supra note 316, at 28 fig. 9. The Snake River produced 1.8 million wild spring/summer chinook for a total of 6.5 million. Id. The Corps collected an estimated 1.4 million wild Snake River smolts, transporting 1.2 million. Bruce, supra note 54, at 1. Some collected fish were tagged and released for research purposes. Id. (542) 1995 BiOp, supra note 11, at 111. In part, NMFS rejected the federal water managers' proposal because it relied primarily on transportation. Id. at 45. (543) See Ray, supra note 432, at 678-80. "Spread the risk," a policy originally developed by state and tribal fishery agencies and adopted by NMFS, seeks to prevent over-reliance on any one method of juvenile passage. See 1995 BiOp, supra note 11, at 112 (discussing the "spread the risk" policy); see supra note 263 and accompanying text. (544) 1995 Annual Report, supra note 442, at 13. (545) DeHart, supra note 316, at 20. (546) 1995 BiOp, supra note 11, at 123; DeHart, supra note 316, at 16. (547) 1995 Annual Report, supra note 442, at 20; see supra notes 505-509 and accompanying text. (548) 1995 Annual Report, supra note 442, at 27. NMFS set the Biological Monitoring Program criteria as a maximum occurrence of 15% of the sampled population having bubbles in 25% or less of the smolt's surface area. Id. at 23. Data show that the effects of gas bubble trauma were completely absent throughout most of the season. Id. at 26-31 (graphs). Perhaps most significantly, the Ice Harbor episode, supra notes 505-509 and accompanying text, may have conclusively demonstrated that smolts can tolerate dissolved gas levels much higher than those set in the BiOp. See also supra note 55 and accompanying text. A NMFS net pen experiment, where smolts were placed in pens at selected depths in the tail race of Ice Harbor, exposed smolts to 128.3% dissolved nitrogen and produced significant mortalities. DeHart, supra note 316, at 20. Stress from handling and confinement in pens may have contributed to the result. Id. The Fish Passage Ctr. concluded that the Ice Harbor net pen experiments tell nothing about the effects of dissolved gas on migrating smolts because the net pen experiments differed from natural conditions with respect to holding conditions, exposure time, depth, and species differences. Id. at 2; see also Lothrop & Weber, supra note 497, at 8-9 (discussing the significance of the net pen experiment results). (549) 1995 BiOp, supra note 11, at 124-25. On stilling basins, see supra note 54. (550) See American Rivers Motion, supra note 21, at 16-18. (551) Id. On spillway deflectors, see supra note 54. (552) 1995 BiOp, supra note 11, at 112-14. Unlike flow augmentation, spill, and transportation, drawdowns were completely absent from FCRPS operations proposed by the federal water managers. See id. at 38-81 (describing the effects of the proposed action). (553) Id. at 114 (discussing disagreement on the value of drawdowns). (554) See supra note 302 and accompanying text. (555) 1995 BiOp, supra note 11, at 112. NMFS directed filling of the reservoirs in late August to allow operation of adult fish ladders. Id. (556) Id. at 113. (557) DeHart, supra note 316, at 2. In 1995, Ice Harbor was initially drafted, but it quickly refilled to reduce spill in an attempt to comply with state dissolved gas standards. Fish Passage Ctr., Weekly Report #95-5, at 1 (Apr. 7, 1995). (558) Fish Passage Ctr., Weekly Report #95-4, at 1 (Apr. 7, 1995). (559) Id. (560) Id.; Bruce, supra note 54, at 3; Fish Passage Ctr., Weekly Report #95-9, at 1 (May 5, 1995). (561) Bruce, supra note 54, at 3-4. (562) Id. Despite the Corps' efforts to comply with the dissolved gas standards, total dissolved gas levels in the John Day tailrace frequently exceeded 120% from April 26 to July 26, 1995. DeHart, supra note 316, at 13 (graph), 15. These high dissolved gas levels, even though spill rarely exceeded an insignificant 2-3% of projected flow, were due mainly to the lack of gas abatement structures at John Day. Id. at 8, 15. (563) American Rivers Motion, supra note 21, at 15; see also supra note 291 (discussing federal water managers' decision not to proceed with the John Day drawdown in 1996). (564) See supra note 13. (565) The TMT did deviate from the BiOp in one instance to protect salmon by initialing spill before Snake River flows reached the spill trigger contained in the BiOp. See supra note 539 and accompanying text. (566) BPA markets electric power produced at 30 federal dams and one nuclear power plant to utilities and industrial customers, with a capacity of 8720 megawatts in 1995. BPA Business Plan, supra note 18, at 3-4 to 3-5. BPA is not an electric retailer, however; it does not serve residential consumers. The agency also built and operates 75% of the Northwest's high-voltage transmission lines. Id. at 3-6. See generally Blumm, Hydroelectric Heritage, supra note 23, at 198-240. (567) See American Rivers et al., On the Brink: Subsidies, Nuclear Debt, and the Future of BPA (1996). (568) 15 U.S.C [sections] 79z-5a (1994); 16 U.8.C. [subsections] 796(22)-(25), 824a-1 (1994); see Amy Abel & Larry Parker, Electricity: The Road Toward Restructuring (Congressional Research Serv. Issue Brief, June 20, 1996). (569) 61 Fed. Reg. 21,540, 21,693-95 (May 10, 1996) (to be codified at 1S C.F.R. [sections] 35.28). (570) Id.; see also id. at 21,551-52 (explaining the "functional unbundling" requirement). Whether the FERC rule would forbid BPA from imposing a "system benefit charge" on transmission services, as advocated in this Article, see infra notes 642-644 and accompanying text, is not entirely clear, see 1994 PROGRAM, supra note 9, at C-28 to C-29, although EERC apparently believes such a charge would be permissible. See infra note 642. (571) See Bonneville Power Admin., The Benefits of Power, The Power of Benefits: 1995 Annual Report 23 (1995) [hereinafter The Benefits of Power]. (572) See Nortwest Power Planning Council, Staff Issue Paper on the Role of the Bonneville Power Administration in a Competitive Energy Market 3 (July 1995) [hereinafter Staff Issue Paper]. (573) Randy Hardy, The Future of the Northwest Electric Power System in the Deregulation Era, Remarks at the 2d Annual Northwest Water Law & Policy Conference (May 9, 1996) (transcript available at the Northwest Water Law & Policy Project, Northwestern School of Law of Lewis & Clark College). (574) See Staff Issue Paper, supra note 572 (exploring issues and alternatives confronting BPA in a competitive energy market); Timothy A. Johnson, Coping with Change: Energy, Fish, and the Bonneville Power Administration, 26 Envtl. L. 589, 596-600 (1996) (discussing the Northwest Power Act, deregulation's effect on BPA, and BPA's ratesetting). (575) Professor Daniel J. Rohlf has pointed out that in 1995 BPA's employees outnumbered the adult chinook salmon that managed to surmount Lower Granite Dam on the Snake River. See Second Annual Conference Tracks Changes in Regional Water and Energy Policy, 2 Big River News, Summer 1996, at 4. (576) Due to financing three nuclear power plants constructed by the Washington Public Power Supply System--only one of which has produced any electricity--BPA accumulated a debt in excess of $7 billion. The Benefits of Power, supra note 571, at 22. (577) BPA claimed its fish and wildlife costs rose from $150 million in 1991 to $400 million in 1995, $160 million of which BPA attributed to implementing the 1995 NMFS BiOp. Id. at 11. However, BPA received a $56 million credit in 1995 toward its federal debt to pay for fish and wildlife costs attributable to the nonpower uses of federal dams. Id. at 18. BPA's actual 1996 fish and wildlife costs were lower than the alleged 1995 figures, however. See infra notes 599, 606 and accompanying text. (573) A coalition of environmental and taxpayer groups estimated that below-cost sales to industry customers cost BPA $214 million annually, and that special rates for the Bureau of Reclamation, irrigation districts, and individual irrigators cost the agency $80 million annually. Friends of the Earth et al., River of Red Ink: A Common Sense Guide to Saving Taxpayers Money and Restoring Northwest Salmon 6, 8-10 (Feb. 1996) [hereinafter River of Red Ink]. The cost of the "residential exchange" program, which reduces rates of residential consumers of Northwest investor-owned utilities, was $198 million in 1995. The Benefits of Power, supra note 571, at 21. However, the Energy and Water Development Appropriations Act of 1995, Pub. L. No. 104-46, 109 Stat. 402 (1995) (codified in scattered section of 16, 42, and 43 U.S.C.), fixed the cost of the program during fiscal year 1997 at $145 million, and the legislative history called for phasing out the program in five years. See Bonneville Power Admin., Keeping Current 4 (Dec. 1995). (579) See The Benefits of Power, supra note 571, at 6 ("BPA is reducing staff and contractors by 20 percent by 1997 compared to 1994 levels."); Remarks of Randy Hardy, supra note 573 (reporting a reduction of $500 million in a budget of $2.5 trillion). (580) See The Benefits of Power, supra note 571, at 6-7 (discussing a proposed 8.2% reduction to publicly owned utilities, to which BPA must give preference under the terms of the Bonneville Project Act, 16 U.S.C. [sections] 832c (1994)). (581) See supra note 576. (582) The Benefits of Power, supra note 571, at 7. (583) See Blumm, Hydroelectric Heritage, supra note 23, at 221-30 (discussing the rise and fall of BPA's Hydro-Thermal Power Program). (584) See The Benefits of Power, supra note 571, at 7. However, BPA's 1986 environmental impact statement on the contracts claimed that the customers could not seek alternative power supplies without BPA's approval Bonneville Power Admin., Final Environmental Impact Statement, Direct Service Industry Options 7 (1986); see also 1 Bonneville Power Admin., Draft Environmental Impact Statement, Initial Northwest Power Act Power Sales Contracts 2-24 (1990). (585) See Letter from Steven G. Hickok, vice President for Sales and Customer Service, Bonneville Power Adminstration, to DSI Customers 2 (May 22, 1995) (discussing [sections] 2(b) of the industrial power sales contracts). (586) Id. (587) Letter from Charles D. Reali, Vice President and General Manager, Vanalco, Inc., to Steven G. Hickok, Vice President for Sales and Customer Service, Bonneville Power Adminstration (June 6, 1995); Letter from Jim Reddy, Vice President, Intalco Aluminum Corp., to Steven G. Hickok, Vice President for Sales and Customer Service, Bonneville Power Adminstration (May 26, 1995); Letter from Dan Ten Eyck, Northwest Power Manager, Reynolds Aluminum, to Randy Hardy, Administrator, Bonneville Power Adminstration (July 5, 1995); Letter from James D. Stramberg, Vice President for Power Management, Columbia Falls Aluminum Co., to Steven G. Hickok, Vice President for Sales and Customer Service, Bonneville Power Adminstration (May 23, 1995). The industrial customers cited a series of letters from BPA since the mid-1980s which arguably excused them from stranded costs associated with the nuclear debt. Also, they argued that the contract language should not be construed to include such stranded costs because, unlike certain utilities, the industrial customers never signed "net billing" agreements back in the 1970s. See generally Blumm, Hydroelectric Heritage, supra note 23, at 221-24 (explaining net billing as a financial scheme under which BPA gave public utilities credits on their BPA bills, in return for BPA's purchase of electric "futures"). (588) Letter from Steven G. Hickok, Vice President for Sales and Customer Service, Bonneville Power Adminstration, to DSI Customers (July 14, 1995) ("This replaces May 22, 1995 letter to you which was in error. Please disregard that letter and accept my sincere apology for the anger and confusion it caused."). (589) See The Benefits of Power, supra note 571, at 7. (590) BPA Proposes Rate Reduction, Issue Alert (Bonneville Power Admin., Portland, Or.), July 1995, at 2. (591) See supra note 579 and accompanying text. (592) For example, in 1995 BPA claimed its fish and wildlife expenditures were $400 million, minus a $56 million credit toward its Treasury repayment obligations (to help pay for fish and wildlife measures aimed at nonpower uses of the federal dams). See The Benefits of Power, supra note 571, at 11, 18. On the other hand, BPA's debt service on nonfederal projects, which is essentially its nuclear power debt, was $485 million, down from $600 million in previous years due to a refinancing of nuclear plant bonds. Id. at 20-21. In 1996, BPA's fish and wildlife costs were considerably lower than the agency claimed in 1995, roughly $345 million. See infra notes 599, 606 and accompanying text. (593) The entire Pacific Northwest Senate delegation sent letters to the four Northwest governors and to President Clinton calling for a limit to fish and wildlife costs. Letter from Pacific Northwest Senate Delegation to the Honorable Bill Clinton (Dec. 20, 1994); Letter from Pacific Northwest Senate Delegation to Pacific Northwest Governors (Aug. 11, 1995). These letters illustrate the delegation's openess to BPA's entreaties for a fish cap. (594) See 16 U.S.C. [sections] 839(4), (6) (1994) (staking that BPA customers are to pay all costs of hydropower generation; fish and wildlife are a purpose of the operation of the FCRPS); id. [sections] 839b(h)(8)(B) (staking that electric consumers are to pay costs of measures designed to respond to the adverse effects of the development and operation of electric power facilities). (595) Pamela Russell, Hatfield Releases Draft Legislation. on Bonneville Fish Budget, Clearing Up, Sept. 25, 1995, at 1, 14-15. (596) Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy That Occurred at Oklahoma City, and Rescissions Act of 1995, Pub. L. No. 104-19, [sections] 2001, 109 Stat. 194, 240-47. See also Michael Axline, Forest Health and the Politics of Expediency, 26 Envtl. L. 613 (1996) and Slade Gorton & Julie Kays, Legislative History of the Timber and Salvage Amendments Enacted in the 104th Congress: A Small Victory for Timber Communities in the Pacific Northwest, 26 Envtl. L. 641 (1996), for a point and counterpoint discussion of the purpose, legislative history, interpretation, and potential effect of the timber salvage rider. (597) See, e.g., Michael C. Blumm, Hydropower vs. Salmon: The Struggle of the Pacific Northwest's Anadromous Fish Resources for a Peaceful Coexistence with the Federal Columbia River Power System, 11 Envtl. L. 211, 223-49 (1981) [hereinafter Blumm, Hydropower vs. Salmon] (reviewing the legislative authorizations of Columbia Basin dams and concluding that hydropower was an incidental or secondary purpose of the dams). (598) For example, a coalition of environmental and taxpayer groups has estimated that irrigation "costs" hydropower $47.5 million annually, while navigation "costs" $29.5 million annually. River of Red Ink, supra note 578, at 8-11. (599) See infra note 606 and accompanying text. A cynic might suggest that, in addition to the fact that 1996 was a high water year, the reason why implementing the BiOp's system operation measures was about half as expensive as originally alleged had to do with BPA's congressional lobbying strategy. The agency may have originally inflated the cost of restructuring system operations in hopes that Congress would exempt it from the ESA and other environmental laws, as occurred in the case of timber harvests, supra note 596 and accompanying text When those hopes failed to materialize, BPA appeared to be stuck with the exaggerated financial figures it used, at least until the MOA adopted the "dual budget" approach, which does not specify a cost figure for system operations. See infra notes 605-606 and accompanying text. (600) For example, Senator Slade Gorton (R-Wash.) was (and apparently remains) especially interested in imposing a legislative cost cap that would include an exemption from environmental laws. See Lynn Francisco, Fish Cost Cap Not Likely to Bring Lower Rates, Says BPA, Clearing Up, Oct. 30, 1995, at 8; Larry Swisher, Sen. Gorton Is Trying to Sell His Salmon Cap Scheme Again, Lewiston Morning Trib., Mar. 11, 1996, at 9A. (601) Angus Duncan, former Chairman of the Council and chief negotiator for the Council in the negotations, noted that the following two factors were critical in arriving at an agreement: 1) the Clinton Administration's willingness to agree, at the urging of Senator Patty Murray (D-Wash.), to establish a contingency fund to cover unanticipated costs associated with low water conditions and court orders; and 2) Senator Gorton's unsuccessful attempt to expand BPA's proposed exemption from environmental laws to include nonfederal dam operators on the mid-Columbia. Telephone Interview with Angus Duncan (Sept. 25, 1996). According to Duncan, Senator Gorton's efforts caused the Clinton Administration to back away from authorizing any exemption from environmental laws, and Senator Hatfield, BPA's chief congressional ally, eventually agreed. Id. Senator Larry Craig's (A-Idaho) Chief of Staff blamed the failure to obtain a waiver from environmental laws on a threatened presidential veto. See Michael R. Wickline, Agreement Kills Dworshak Protection, Lewiston Morning Trib., Oct. 24, 1995, at 1A; Lynn Francisco, Fish Cost Cap Not Likely to Bring Lower Rates, Says BPA, Clearing Up, Oct. 30, 1995, at 8. (602) See Tom Alkire & Brian Broderick, Gore, Senators Announce Cap on Columbia River Salmon Recovery Effort, S.E.D. (BNA), (Oct. 25, 1995), available in WL at 10/25/95 SED d4; John A. Harrison, A Negotiated Budget, Northwest Energy News, Spring 1996, at 23. (603) See Harrison, supra note 602, at 23. (604) Memorandum of Agreement Among the Department of the Army, the Department of Commerce, the Department of Energy, and the Department of Interior Concerning the Bonneville Power Administration's Financial Commitment for Columbia River Basin Fish and Wildlife Costs (Sept. 16, 1996) [hereinafter Federal MOA]. (605) Id. [subsections] IV(a), V(a). The MOA recognized that operations required by the BiOp could change over time and might be subject to dispute, so the MOA authorized a dispute resolution process involving consultation with all parties and a regional forum, with NMFS making the ultimate determination as to whether a particular operation is required by the BiOp. Id. [sections] V(a). (606) Interview with Daniel J. Rohlf, Attorney for Plaintiffs in American Rivers v. NMFS, Portland, Or. (July 31, 1996). The MOA negotiators estimated that in an average water year the cost of implementing BiOp-specified operations would be $183 million, meaning that with the $252 million in out-of-pocket expenditures, the total cost to BPA in an average water year would be $435 million. Interview with Angus Duncan, supra note 601. (607) The MOA expressly committed BPA to absorbing the costs of operating the John Day reservoir at MOP. Federal MOA, supra note 604, [sections] IV(c) (specifying that such costs are to be considered "above and beyond, and not charged" to BPA's budget as established by the MOA). However, NMFS subsequently eliminated the requirement of drawing down John Day to MOP from its BiOp. See supra note 291 (explaining the tortuous history of the John Day MOP provision); see also infra notes 713, 720 and accompanying text. (608) Federal MOA, supra note 604, [sections] V(d). (609) Id. (610) Id. Annex. [subsections] a(1) (annual prioritization and coordination with federal budget process), b (quarterly reporting of expenditures), c (independent scientific review of prioritization criteria and annual work plans). An interesting part of the MOA promises development by April 1997 of "options" for direct BPA funding of all activities currently funded by congressional appropriations. Id. [sections] a(2). For example, the U.S. Fish and Wildlife Service is apparently interested in funding some or all of the activities under its Lower Snake River Compensation Plan. See Memorandum to Interested Parties from Steve Crow, Northwest Power Planning Council Executive Director 5 (Sept. 11, 1996) [hereinafter Crow Memorandum]. (611) Federal MOA, supra note 604, [sections] VII. Use of the contingency fund for natural disasters and fishery emergencies is limited "in the aggregate" to $15 million per year. Id. [sections] 7(a)(3). (612) See Crow Memorandum, supra note 610, at 3. (613) See Federal MOA, supra note 604, [sections] III (discussing goals of providing BPA with financial security, identifying a budget that will meet BPA's fish and wildlife obligations, and ensuring that those funds are expended soundly and efficiently). (614) Thomas Jensen, Remarks at the 2d Annual "Who Runs the River?" Conference (Oct. 27, 1995) (available at the Northwest Water Law & Policy Project, Northwestern School of Law of Lewis & Clark College); Letter from Alice M. Rivlin, Director, OMB, to Sen. Mark Hatfield, Chairman, Appropriations Committee (Oct. 24, 1995) (on file in Remarks at 2d Annual "Who Runs the River?" Conference (Oct. 27, 1995) (available at the Northwest Water Law & Policy Project, Northwestern School of Law of Lewis & Clark College)). (615) Charles Ray & Dan Rohlf, What Happened to the Salmon Cost Cap?, Currently (Idaho Rivers United), Winter 1996, at 7. One of the plaintiffs attorneys in the American Rivers v. NMFS case, discussed supra notes 13, 21, 36 and accompanying text, observed that it is hardly clear what implementing the NMFS BiOp requires, referring to the "side deals" made by NMFS with Montana in 1995, supra notes 490-499 and accompanying text, and noting that NMFS attorneys in the negotiations that temporarily settled the case described the BiOp as an "adaptive document." Interview with Daniel J. Rohlf, supra note 606. (616) Ray & Rohlf, supra note 615, at 7. On the John Day rationale, see supra note 291. (617) We acknowledge that the budget was conceived by those who negotiated it as something quite different from legislation that would supplant environmental laws, and that it was in fact perceived to be sufficient to carry out the directives of the NMFS BiOp and most of the Council's program (except for the Snake River drawdowns and new water purchases in the Snake Basin). But given the overwhelming historic dominance of economic concerns over biological needs, see Blumm, Hydropower vs. Salmon, supra note 597, at 214-23; Blumm, Saving Idaho's Salmon, supra note 87, at 669-77, we predict that the budget will repeat this history by elevating economic accounting over biology. (618) See 16 U.S.C. [sections] 1536(a)(2) (1994) (ESA provision requiring agencies to use "the best scientific and commercial data available"); 16 U.S.C. [sections] 839b(h)(6)(B)-(C) (1994) (Northwest Power Act provisions calling for decision making based on the "best available scientific knowledge" and authorizing minimum economic cost alternatives only where they achieve "the same sound biological objective"); see also supra notes 300-301 and accompanying text. (619) The MOA twice disclaimed any intent to affect any statutory duties. Federal MOA, supra note 604, (subsections) VII(d), IX(e). (620) Energy and Water Development Appropriations Act, Pub. L. No. 104-46, [sections] 508(c), 109 Stat. 402 (1995). (621) Id. [sections] 508(c), 109 Stat. at 420. (622) Council Governance Report, supra note 27. (623) Id. at 6. (624) Id. at 2, 12. This executive order would direct federal agencies to act in a manner consistent with the Council's program "insofar as permitted by their statutory responsibilities, and to provide detailed, written explanations if they diverge from the program." Id. The council's program does include a similar requirement, see supra note 279, but, as the council noted, "[t]he seriousness with which federal agencies have implemented the Council's program . . . has varied from agency to agency and time to time." Council Governance Report, supra note 27, at 4. (625) Council Governance Report, supra note 27, at 12-13. (626) Id. at 15 ("For all consistency alternatives, we assume no changes in the Endangered Species Act or other environmental laws. That is, if there were a conflict between the Council's fish and wildlife program and the Endangered Species Act, the Endangered Species Act would govern."). The Council did note some of the shortcomings of decision making under the ESA, including its relative lack of public processes, its focus only on species in peril of extinction, and its relative lack of accommodation for community and economic impacts, as well as the legal rights of Indian tribes. Id. at 5-6. (627) Id. at 6, 13-14. (628) Id. at 2. The Council subsequently took steps toward integration by signing an interagency agreement with NMFS to integrate scientific reviews, see infra note 647 and accompanying text, and by establishing an Executive Implementation Committee, composed of representatives of the Council, the tribes, and NMFS, to coordinate m-year migration decisions. Interview with Angus Duncan, supra note 601. (629) The Council did suggest that the sovereigns (federal, state, and tribal) could be convened to develop a "cohesive set" of recommended amendments to the Council's program. Council Governance Report, supra note 27, at 13. Then, the Council would ask NMFS and the USFWS to determine whether the amended program would satisfy the ESA. Id. If it did not, the Council promised to "engage the region in focusing on the specific statutory requirements at issue and determine the most appropriate regional response." Id. In practice, this has meant that the Council, BPA, and the fish and wildlife agencies and tribes are attempting to draw upon the three plans in formulating a five-year work plan that eventually could become the subject of amendments to the Council's program. Letter from John Volkman, supra note 96, at 4. Another version of a reconciliation process was proposed by an inter-tribal work-group, which recommended an expanded version of the Columbia Basin Fish and Wildlife Authority as a regional forum in which all sovereign enddes--federal, state, and tribal, and even Canadian representatives on selected issues--would participate. Although the tribes recognized the need for a dispute resolution process, they did not recommend one. However, they did suggest creation of a regional fiscal management entity to supplant BPA's role as financial manager of fish and wildlife expenditures, creation of a regional science advisory panel, and a focus on watershed planning and implementation. Council Governance Report, supra note 27, app. 5 at 22-23. (630) Council Governance Report, supra note 27, at 2, 12. The Council also promised to report later to Congress on measures to integrate management of fish and wildlife expenditures. Id. at 2. (631) See Blumm & Simrin, Unraveling Parity, supra note 75, at 676-77, 688-89, 711-12, 731, 737-38. (632) Council Governance Report, supra note 27, at 14. (633) Id. (634) Id. at 14-15. (635) See supra note 596 and accompanying text. (636) See, e.g., Blumm & Simrin, Unraveling Parity, supra note 75, at 676-77, 688-89, 705, 709. (637) See, e.g., Northwest Power Planning Council, Report to the Northwest Power Planning Council from the Workshop on Fish and Wildlife Governance 9, 17 (1996) (report to the Council from a workshop--consishng of 40-50 representatives from the federal, state, tribal, power, agricultural, and environmental sectors--on fish and wildlife governance in the basin, concluding that dispute resolution mechanisms are needed for the implementation of salmon restoration plans). Salmon advocates not only sought an effective dispute resolution process, they unsuccessfully advocated that the Council's report recommend that Congress revoke BPA's role in making funding decisions regarding fish and wildlife measures. See Lorraine Bodi & Rick Appelgate, Fish Issues and The Regional Energy Review: A Discussion Paper 2 (May 1996). (638) See Bill MacKenzie, N. W. Energy System Faces Review Starting Thursday, The Oregonian, Jan. 3, 1996, at B12 (describing the goals of the regional review). Although the Council was well aware of the regional energy review, it failed to recommend that any restructured power system be required to fund fish and wildlife restoration obligations, or to insist that no portion of a restructured system be excused from such obligations. See Bodi & Appelgate, supra note 637, at 1-2. (639) See generally Blumm, Hydropower vs. Salmon, supra note 597. (640) See generally Blumm & Simrin, Unraveling Parity, supra note 75. (641) William Stelle, Northwest Director, National Marine Fisheries Serv., Remarks at the 2nd Annual Northwest Water Law and Policy Conference (May 9, 1996) (materials available at the Northwest Water Law & Policy Project, Northwestern School of Law of Lewis & Clark College). (642) The "system benefit charge" was endorsed by BPA Administrator Randy Hardy. See Hardy, supra note 573. Also, nothing in the new FERC open transmission rules would foreclose the system benefit charge endorsed by Hardy. Promoting Wholesale Competition Through Open Access Non-Discriminating Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting utilities, 61 Fed. Reg. 21,540, 21,668 (May 10, 1996) (staking that the new rules do "not address stranded cost recovery by BPA under the Northwest Power Act"). (643) See Second Annual Conference Tracks Changes in Regional Water and Energy Policy, Big River News, Summer 1996, at 1, 3-4. (BPA Administrator and NMFS Regional Director advocating integration of fish and wildlife governance and regional energy reviews); Council Governance Report, supra note 27, app. 5 at 17 (Angus Duncan, former Council Chairman, advocating integration). (644) See Bodi & Appelgate, supra note 637, at 44 (recommending 1) elimination of "below cost transactions" benefitting aluminum companies, irrigators, and barging companies; 2) opposition to separating the federal transmission system from federal power sales "without assurances regarding allocation of nuclear debt and secure financing for fish and wild if e obligations"; 3) cancellation of BPA's obligation to support all customer power demands (because elimination of "the obligation to serve" would reduce alleged BPA fish and wildlife costs); 4) exit fees, system benefits charges, other surcharges on transmission services, or some combination to ensure equitable allocation of nuclear costs; 5) separate sale of the power generated by BPA's only producing nuclear power plant, in order to ensure that consumers are willing to pay for its costs; 6) that hydrosystem operators be required to meet fish needs first and make power marketing decisions only after the fish plan has been satisfied; and 7) elimination of the Army Corps of Engineers' responsibility for implementing fishery operations at Columbia Basin dams). (645) See, e.g., John Etchart & Stan Grace, Salmon Plan Disregards Evidence, Seattle Post-Intelligencer, Jan. 12, 1995, at A15 (two Council members from Montana, who voted against the 1994 amendments to the Council's program, claiming they did so because the amendments were based on "flimsy evidence or no evidence at all"); Joan Laatz Jewett, Corporate Giants Launch Salmon Plan, The Oregonian, Feb. 17, 1996, at A1, A14 (discussing an "industry-supported public information campaign" that derided the employment of spill, drawdowns, and inriver migration (over the use of barging) in the Council's program and the tribal plan because of the lack of any scientific evidence to justify the expenses of these measures); Brian T. Meehan, Industry Coalition Blasts Federal Plan to Save Salmon, The Oregonian, Feb. 10, 1995, at C3 (Bruce Lovelin, of the Columbia River Alliance, denouncing the BiOp: "We simply do not accept that there is any scientific basis for the NMFS plan; it is a whim and a caprice."); John C. Merkel, Power Planning Council Doesn't Do Right by Salmon, Seattle Post-Intelligencer, Dec. 28, 1994, at A7 (editorial by attorney representing the Columbia River Alliance, claiming the Council's program "lacks scientific basis"); Cyrus Noe, Draft BO and Recovery Plan Show Little Science, Clearing Up, Jan. 9, 1995, at 3, 5 (claiming there is no scientific consensus on the efficacy of drawdowns or spill). But compare supra notes 298-299 (on the danger of "studying salmon to death"). (646) 1994 Program, supra note 9, at 3-9, 5-14. (647) Council/NMFS Agreement, supra note 30. (648) Energy and Water Development Appropriations Act, Pub. L. No. 104-206, [sections] 504, 110 Stat. 2989 (1996) (Formerly H.R. 3816). (649) 1994 Program supra note 9, at 3-7 to 3-11, 5-13. (650) ISG Report, supra note 7. (651) Id. at xvii ("Key among the conditions we define as normative is the availability of a continuum of high-quality habitat throughout the salmon life cycle, from freshwater streams along the entire migratory path into and back out of the Pacific Ocean."); see also id. at 5 ("We stress the need to restore the natural functions of the Columbia River ecosystem that produce salmonid fishes, as opposed to circumventing natural ecological processes."); id. at 7 (defining "`a more normative state' as the restoration of natural ecological processes consistent with the needs of native fish and wildlife species."); id. at 19-20 (defining a "normative ecosystem"); Carlotta Collette, Interview with Rick Williams, Chair of the Independent Scientific Advisory Board, Northwest Energy News, Summer 1996, at 7, 8 (distinguishing a "normative" river from a "pristine" river). (652) The report expressly declined to make "specific prescriptions" necessary to implement its recomrnendations because it would have to "incorporate social and economic concerns" beyond the scope of a scientific study. ISG Report, supra note 7, at 6. The report recommended that "[t]he potential social, economic and biological costs and benefits of implementing normative conditions should be determined and become part of the regional debate regarding salmon restoration." Id. at 7. 653 Id. at 5A fig. 1.2, 18-20. (654) Id. at 4. The report was critical of the Council's use of adaptive management, concluding: In our view, adaptive management has [been used by the Council] to justify a variety of actions on the premise that they may provide new information. We contend that adative management is intended as a much more rigorous scientific approach. The term should only be used in reference to explicit management experiments that include hypotheses, test conditions and a detailed experimental design. The concept of adaptive management should not be used as a justification for every action about which the outcome is uncertain. ISG Report, supra note 7, at xxii. For discussion of the Council's use of adaptive management, see supra notes 171-172, 217-218 and accompanying text. (655) Id. at 4. (656) Id. at 5 ("Despite decades of effort, the present condition of most populations in the Columbia River Basin demonstrates the failure of technological methods to substitute for lost ecosystem functions."); see also id. at 506 (citations omitted): Indeed, salmon restoration in the Columbia River emphasizes the use of hatcheries, complex bypass systems, artificial habitat structures and other fundamentally technological operations, in part, because managers and policy-makers have adopted the machine metaphor. These technologies evolved over the years and have been used almost exclusively to mitigate, not correct, habitat degradation caused by decades of cultural development. The belief that habitat degradation can be technologically mitigated, as opposed to restoration of normative habitats for all life history stages of salmonids, is ingrained in the Fish and Wildlife Program. The prevailing belief is that the primary problem for anadromous fish is mortality associated with juvenile passage through the dams and reservoirs. The prevailing solution is a combination of hatchery technology, to maximize the number of smolts produced, combined with flow augmentation, to move them as rapidly and efficiently as possible through the hydropower system. This strategy is reflected in restoration expenditures and in the assumptions implied in the Fish and Wildlife Program. Unfortunately, the restoration program based on the machine metaphor has failed to curtail the decline of salmonid fishes. (657) Id. at 508. (658) Id. Salmon metapopulations are "spatially-structured groups of local populations linked by dispersal of individuals." Id. at 29 (citation omitted). The ISG report contended that salmon metapopulations exhibit core-satellite populations, with historic Columbia Basin core populations in large alluvial mainstem reaches functioning as buffers against environmental change and supporting colonizing populations in neighboring areas. Id. at 30. (659) See, e.g., James L. Buchal, Some Fallacies About Salmon Restoration, 25 Envtl. L. 375 (1995) (660) See ISG Report, supra note 7, at xix-xx. (661) Id. at xxiv, xxv, 266, 513; see also id. at 55 ("[W]e advise focusing on the restoration of a riverine velocity structure as close as possible to the pre-impoundment hydrograph."). The report did object to nonseasonal flow augmentation (providing summer flows in the lower Columbia by drawing down Hungry Horse reservoir in Montana), suggesting that summer flushing flows may do more harm than good and may adversely affect food web productivity in the reservoir. Id. at 265. (662) See id. at xxi, 19, 240, 248. In fact, the report noted that high spring flows may benefit some salmon stocks while disadvantaging others. Id. at 53-57 (distinguishing between yearling and subyearling chinook). (663) Id. at xx; see also id. at 509 (citations omitted): Available historic evidence, the current high abundance of fall chinook in the Hanford Reach, and principles of large river ecology, suggest that large alluvial reaches in the mainstem and lower sections of many tributaries were the fish factories of the Columbia River ecosystem. Mainstem spawning populations may have functioned as vital core populations important in sustaining metapopulation persistence. Furthermore, alluvial mainstem areas likely were important rearing areas for juvenile salmonids moving downstream. Although critically important with respect to biodiversity, many tributaries in the headwaters of subbasins were probably not significant production areas, owing to their smaller size, lack of nutrients to support food webs, steep gradients, long distances from the ocean and other considerations. (664) Id. at 268-69, 513. The report did not endorse temporary drawdowns because they tend to concentrate predators and adversely affect shallow water habitats, id. at 268, but it did call for the stabilization of daily flow fluctuations (done to meet peak hydropower demands) in order to protect food webs in shallow-water habitats important for juvenile rearing areas, id. at xxiv. (665) Id. at 509 (noting that the basin contains "few remaining headwater salmon populations, many of which historically never were very productive."); see also supra note 663 (describing "metapopulations"). (666) Id. at 483. (667) Id. at 490. (668) Id. (669) Id. at 485. (670) For example, the report noted that river flows may play an important role in improving conditions in the estuary, including pollution abatement and wetlands restoration. Id. at xxiv, 518. (671) Id. at 510. In this respect, the ISG report evinced sentiments remarkably similar to the Ninth Circuit in the NRIC case, where the court interpreted the Northwest Power Act to require decision makers to shift the burden of uncertainty to favor salmon restoration. See Northwest Resource Info. Ctr. v. Northwest Power Planning Council, 35 F.3d 1371, 1377-78 (9th Cir. 1994), cert. denied, 116 S.Ct. 50 (1995); supra note 137 and accompanying text. (672) ISG Report, supra note 7, at 328. (673) Id. at 397. (674) Id. at 397-98. (675) Id. at 398 ("It remains to be seen, however, if there is a role for large-scale production hatcheries that is compatible with conservation and long-term management of many of our imperiled stocks."). (676) One question that requires examination is whether such permanent drawdowns would disrupt navigation, an authorized purpose of the dams, and if so, the feasibility and cost of maintaining navigation with a permanent drawdown or providing substitute transportation. (677) See supra 291 and accompanying text; infra text accompanying notes 713 and 720. (678) See supra note 600. (679) See supra notes 610, 646-163 and accompanying text. (680) Energy and Water Development Appropriations Act, Pub. L. No. 104-206, [sections] 504, 110 Stat. 2984, 3005-06 (1996) (adding new [sections] 4(h)(10)(D)(iv) to the Northwest Power Act). (681) Id. [sections] 504. Presumably, all measures must also be consistent with the Council's program, since BPA must fund measures consistent with the program. 16 U.S.C. [sections] 839b(h)(10)(A) (1994). (682) 16 U.S.C. [sections] 839b(h)(10)(D)(i), (ii) (1994). The rider directed the Council to select the members of both the Independent Scientific Review Panel and the Scientific Review Panels from nominations submitted by the National Academy of Sciences, although "Pacific Northwest scientists with expertise in Columbia River anadromous and non-anadromous fish and wildlife and ocean experts shall be among those represented on the Panel." Id. Members of the interagency Independent Scientific Advisory Board, see supra notes 30, 647 and accompanying text, are not excluded from membership in the new panels, and Council staff has recommended consolidating functions. See Memorandum from John Volkman, John Shurts, and Mark Walker to Council Members 2 (Sept. 16, 1996) [hereinafter Volkman memorandum]. (683) Energy and Water Development Appropriations Act [sections] 504, 110 Stat. at 3005-06 (adding a new [sections] 4(h)(10)(D)(vi)). The rider specifies that project recommendations must be "based on sound science principles; benefit fish and wildlife; and have a clearly defined objective and outcome with provisions for monitoring and evaluation of results." Id. (adding new [sections] 4(h)(10)(D)(iv)). (684) Section 4(h)(7) of the Northwest Power Act requires the Council, when rejecting recommended fish and wildlife measures, to explain in writing why the recommendation was inconsistent with the statutory criteria established in section 4(h)(6) of the Act, giving "due weight" to the expertise of the fish and wildlife agencies and Indian tribes. 16 U.S.C. [sections] 839b(h)(7) (1994). (685) See supra notes 143-146 and accompanying text. (686) In particular, the rider contains no mention of the "due weight" language that the Ninth Circuit interpreted in the NRIC decision. See supra notes 143-144, 684 and accompanying text. (687) Energy and Water Development Appropriations Act [sections] 504, 110 Stat. at 2984 (adding new [sections] 4(h)(10)(D)(v) of the Northwest Power Act). (688) Id. (adding new [sections] 4(h)(10)(D)(vi)). (689) See, e.g., Who Runs the River?, supra note 79, at 420 (comment by James Buchal). (690) Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1394-95 (9th Cir. 1994), cert. denied, 116 S.Ct. 50 (1995); see supra note 147 and accompanying text. (691) 16 U.S.C. [sections] 839b(h)(7) (1994). (692) See supra notes 143-146, 150-162 and accompanying text. (693) 16 U.S.C. [sections] 839b(h)(6) (1994). (694) See supra note 137 and accompanying text. (695) 16 U.S.C. [sections] 839b(h)(6)(C) (1994) (discussed supra notes 157-158 and accompanying text); Blumm, Fulfilling Parity, supra note 1, at 131-32. (696) There is some question as to whether Congress may unilaterally alter the marching orders of the Northwest Power Planning Council, which the Ninth Circuit upheld as an interstate compact in Seattle Master Bldrs. Ass'n v. Northwest Power Planning Council, 786 F.2d 1359, 1363 (9th Cir. 1986) (discussed in Symposium, 17 Envtl. L. 767-999 (1987)). Although the Council was authorized by section 4(a)(2) of the Northwest Power Act, 16 U.S.C. [sections] 839b(a)(2) (1994), it was not created until three of the four Northwest states accepted Congress's offer and authorized the appointment of Council members pursuant to state law. See Roy Hemmingway, The Northwest Power Planning Council: Its Origins and Future Role, 13 Envtl. L. 673, 688 (1983). Since the Ninth Circuit concluded that creation of the Council required action of both Congress and the states ("[t]he Council is an operational body established by reciprocal legislation whose effectiveness is conditioned upon binding legislative commitments by the states," Seattle Master Bldrs. Ass'n, 786 F.2d at 1363), and since the effect of the Gorton rider is to change the obligations of the state-created Council, the states may have to approve the rider in order to satisfy the Constitution's compact clause. (697) See supra notes 688 (ocean conditions), 681 (clear objectives and monitoring and evaluation criteria) and accompanying text. See also supra note 8 for an earlier discussion of the effect of ocean conditions. (698) The rider expressly applied only to measures implementing the Council's program, not to measures implementing the NMFS BiOp. Council staff found that the effect of the rider on projects that implement both the Council program and the NMFS BiOp was unclear, as was its effect on projects funded by Congress, not BPA, such as measures to modify Corps of Engineers dams. See Volkman memorandum, supra note 682, at 6. (699) Michael Spear, Remarks at the 2d Annual Northwest Water Law and Policy Conference (May 9, 1996) (materials available at the Northwest Water Law & Policy Project, Northwestern School of Law of Lewis & Clark College). (700) See generally Blumm & Johnson, Promising Parity, supra note 1. (701) See Blumm, Reviving Parity, supra note 108, at 356-59. (702) See supra note 631 and accompanying text. (703) See supra notes 91-92 and accompanying text. (704) See Blumm, Saving Idaho's Salmon, supra note 87, at 692. (705) See supra notes 102-104 and accompanying text. (706) See supra notes 109-126 and accompanying text. (707) See supra notes 127-165 and accompanying text. (708) See supra Part IV. (709) See supra notes 403429 and accompanying text (BiOp the least protective plan); 288, 293-305, 345, 416, 419 and accompanying text (postponing until 1999). (710) See supra Part V. (711) See, e.g., Davina Kari Kaile, Evolution of Wildlife Legislation in the United States: An Analysis of the Legal Efforts to Protect Enda gered Species and the Prospects for the Future, 5 GEO. Int'l Envtl. L. Rev. 441, 443 (1993) (examining proposed amendments to the ESA in 1993 and recommending that Congress adopt a new ESA that would "infuse some flexibility into the dogmatic policy mandated by the current [ESA]"); Ike C. Sugg, Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects for Reform, 24 Cumb. L. Rev. 1, 6 (1993) (concluding that the ESA is "ineffective, arbitrary, unconstitutional, and, thus, unsustainable as a public policy"). (712) See supra notes 282, 406-409 and accompanying text. (713) See supra notes 291-292, 298-305, 416, 607 and accompanying text; infra note 720. (714) See supra notes 309, 326-329, 419 and accompanying text. (715) See supra notes 517-518 and accompanying text; see also supra notes 319-322 and accompanying text. (716) See Northwest SALMON CRISIS, supra note 90, at 320 (describing the great administrative discretion existing under the ESA). (717) See supra notes 627-629 and accompanying text. The report also missed an important opportunity to explain how a lack of perceived enforcement authority hampered program implementation. See supra notes 635-636 and accompanying text. (718) See supra notes 604-619 and accompanying text. (719) See supra notes 490-491, 494-499 and accompanying text. (720) See supra notes 289-291, 607, 713 and accompanying text. The Corps did not in fact implement the John Day drawdown in 1996. (721) See supra notes 462, 466, 469-472 and accompanying text. (722) See supra notes 444-449, 453-458, 463-466 and accompanying text. (723) See supra notes 323-335 and accompanying text. (724) Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1395 (9th Cir. 1994), cert. denied, 116 S.Ct. 50 (1995). (725) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886, 900 (D. Or. 1994). (726) See generally supra notes 13, 21, 36, 285, 494, 503, 514, 520 and accompanying text (discussing American Rivers v. NMFS, No. 96-384MA (D. Or. fled Mar. 13, 1996)). (727) 16 U.S.C. [sections] 839b(h)(6)(B) (1994); 16 U.S.C. [sections] 1536(a)(2) (1994) (ESA); see also supra notes 300-301 and accompanying text. (728) See supra notes 41, 49 and accompanying text. (729) See supra notes 49, 196. (730) See supra notes 47, 65. (731) See, e.g., Blumm, Fulfilling Parity, supra note 1, at 108-12 (discussing decision making prior to the enactment of the Northwest Power Act). (732) See, e.g., Lynn Francisco, Schmitten Praises Bevan Plan, Promises Few Changes, Clearing Up, June 20, 1994, at 6 (NMFS director calling the recovery team's recommendations a "recipe for recovery," while the Columbia River Alliance deemed the recommendations "science-based and balanced"); Slade Gorton, Panic Won't Save the Salmon, Wenatchee World, Jan. 16, 1994, at A8 (editorial by Washington senator endorsing the recovery plan as "tough" and "comprehensive," and emphasizing the recovery team's determination that there is no scientific justification for spill or drawdowns); Cyrus Noe, Senators Ignore Power Council and Urge Administration to Follow Bevan Plan, CLEARING UP, Dec. 26, 1994, at 6-7 (discussing a letter from seven of the eight Northwest senators to President Clinton that endorsed the recovery team's draft recovery plan, claiming it was the only slamon recovery plan that represents "regional, scientifically peer reviewed measures"); Cyrus Noe, Fish Wars at Mid-1994: There Will Be No Peace Without a Science Treaty, Clearing Up, May 30, 1994, at 3, 5 (calling the recovery team's recommendations a "balanced and accountable" salmon restoration plan and claiming that flow improvement and spill measures "fly in the face of science"); Cyrus Noe, Judge Marsh: Reinventing the Endangered Fishwheel: ID, OR & Yakamas Nix MT, Clearing UP, May 13, 1994, at 3 (calling the recovery team's efforts "the best science for fish issues"). (733) See supra notes 47, 49. (734) See supra note 58. (735) See supra note 65 and accompanying text. (736) See National Research Council, supra note 8, at 207-211. But see supra notes 32, 47, 65 (disputing the validity of the study). (737) See supra note 32. (738) See supra notes 47, 65. (739) See Koberstein, supra note 32, at 13 (discussing the background and influence of Donald Chapman). (740) See National Research Council, supra note 8, at 12-13, 299-306. (741) See supra notes 30, 647 and accompanying text. (742) See supra note 679 and accompanying text. (743) ISG Report, supra note 7; see supra notes 649-677 and accompanying text (discussing the ISG Report). (744) ISG Report, supra note 7, at xvii. (745) See supra notes 290, 713 and accompanying text. (746) See supra notes 661 (restoration of spring freshet), 664-665 (permanent drawdowns), 671-675 (burden of proof against technological fixes) and accompanying text. (747) See supra note 137 and accompanying text. (748) See supra notes 291, 713, 720 and accompanying text. (749) See supra notes 604-619 and accompanying text. (750) The Northwest Power Act's policy is that electric ratepayers are to pay the full cost of developing and operating Columbia Basin hydroelectric dams, including fish and wildlife costs. See 16 U.S.C. [subsections] 839(4), (6), 839b(h)(8)(B) (1994); supra note 594. (751) See supra notes 597-598 and accompanying text. But fish costs are fairly modest. BPA estimated that a natural river drawdown of the four lower Snake River reservoirs and operation of John Day at MOP would result in a "change in total annual systems costs" of $266-$336 million, see SOR Summary, supra note 340, at 22, while BPA's preferred alternative in the SOR, which is merely the measures contained in the 1995 NMFS BiOp, cost $164 million, id. at 35. The SOR estimated that moderate drawdowns would incur costs of $78-$145 million. Id. at 27; cf. infra note 755 (environmentalists claim that a drawdown to natural river level would increase electric rates by only 8.546). (752) See supra notes 616 and accompanying text. (753) See 1996 Annual Report, supra note 191, at 22-25 (discussing the 1996 Northwest energy review initiated by the governors of Idaho, Montana, Oregon, and Washington to recommend changes in the institutional structure of the basin's electric utility industry). On September 10, 1996, the regional energy review issued a preliminary draft report for public review. The report suggested dividing BPA into two separate legal entities and asked for public comment on a variety of issues, such as the future of the Northwest Power Planning Council; whether the region should continue to support conservation, renewable resources, and low-income energy assistance or leave such matters to the market; and whether BPA should be able to use transmission revenues to pay for nontransmission costs. See Designing a Competitive Electric Industry for the 21st Century (Sept. 1996) <http://www.newsdata.com/enernet/review/ documents/ftcpt.html> (discussed in Jude Noland, Regional Review Releases Draft Report on NW Energy System, Clearing Up, Sept. 16, 1996, at 14). The last question seemed to assume that fish and wildlife costs and nuclear costs are "non-transmission costs," a highly debatable proposition, since, for example, expansion of BPA's transmission services was an integral part of the Hydro-Thermal Power Program that produced the nuclear debt. See Blumm, Hydroelectric Heritage, supra note 23, at 222 (noting that federally funded hydroelectric and transmission facilities were estimated to cost $5 billion of the $7 billion the program was thought to originally cost). Moreover, in requiring that electric customers pay all the fish and wildlife costs of the development and operation of the hydroelectric system, see supra note 594, Congress hardly intended to exempt transmission services from fish and wildlife obligations. (764) See Remarks of William Stelle, supra note 641. (756) See Changing the Current, supra note 7, at 33 (report of the Natural Resources Defense Council, Sierra Club, and American Rivers stating that in 1993, average residential rates in the Pacific Northwest were under 4.8 cents per kilowatt-hour, 3.6 cents under the national average; also estimating that a complete reservoir drawdown scheme to natural river level would increase rates only 8.5%). (756) See supra note 642. (757) See supra notes 578, 644. (758) See supra note 594. (759) See supra notes 216-218 and accompanying text. (760) See supra notes 57-66 and accompanying text. (761) See Jack Landau, Empty Promises: Indian Treaty Fishing Rights in the Pacific Northwest, 10 Envtl. L. 412 (1980); Natural Resources L. Inst., 12 Anadromous Fish L. Memo 1 (Apr. 1981). (762) Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 686 (1979) (stating that "Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood--that is to say, a moderate living"). (763) Ted Strong, Chairman, Remarks at 2d Annual Water Law and Policy Conference (May 9, 1996) (transcript available at Northwest Water Law & Policy Project, Northwestern School of Law of Lewis & Clark College). (764) Several court decisions suggest that implicit in the treaty "right to take fish" is the right to have fish in the river for taking. See, e.g., Blumm, Saving Idaho's Salmon, supra note 87, at 704-07; Gary D. Meyers, United States v. Washington (Phase H) Revisited: Establishing an Environmental Servitude Protecting Treaty Fishing Rights, 67 Or. L. Rev. 771, 783-97 (1988) (concluding that treaty fishing rights create a vested environmental servitude for tribes); Michael C. Blumm & Brett M. Swift, The Indian Piscary Profit: Treaty Fishing Rights and Environmental Protection in the Pacific Northwest (unpublished draft paper, on file with authors). For an argument that Columbia Basin salmon restoration under the ESA has breached the federal trust obligation to the tribes, see Mary Christina Wood, Fulfilling the Executive's Trust Responsibility Toward the Native Nations on Environmental Issues: A Partial Critique of the Clinton Administration's Promises and Performance, 25 Envtl. L. 733, 794-99 (1995). Christopher Beckwith, Michael C. Blumm, Professor of Law, Northwestern School of Law of Lewis & Clark College, Co-Director, Northwest Water Law & Policy Project. This study was prepared as a paper of the Northwest Water Law & Policy Project. Lorraine Bodi, Angus Duncan, Dan Rohlf, John Ogan, John Shurts, John Volkman, and Jim Weber made helpful comments on a draft of this paper, but they are not responsible for any remaining errors. We thank Phillip M. Bender, J.D. expected 1997, Northwestern School of Law of Lewis & Clark College, for superb editorial assistance. Michael A. Schoessler, J.D. 1996, Northwestern School of Law of Lewis & Clark College, B.A. 1991, Lewis & Clark College. R. Christopher Beckwith, J.D. 1996, Northwestern School of Law of Lewis & Clark College; B.A. 1992, University of Kansas. |
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