Saving Snake River water and salmon simultaneously: the biological, economic, and legal case for breaching the lower Snake River dams, lowering John Day Reservoir, and restoring natural river flows.

I. INTRODUCTION

The plight of the Snake River salmon runs has become one of the late twentieth century's foremost environmental issues.(1) The Snake River is the largest tributary of the Columbia River, and the Snake Basin, including tributaries such as Idaho's famed Salmon River, once contained the most productive salmon spawning areas in the Columbia Basin.(2) All Snake River salmon must traverse the lower 140 miles of the Snake River in eastern Washington. Unfortunately, the lower Snake, the gateway to all of Idaho's prime salmon habitat, is no longer a free-flowing river but is instead a series of reservoirs formed by four federal dams constructed and operated by the U.S. Army Corps of Engineers (Corps).(3) These Snake River dams, together with four additional Corps dams on the lower Columbia, all part of the federal Columbia River Power System, pose substantial hurdles to both upstream and downstream migrating salmon and have destroyed important spawning grounds. Although there are other causes for the decline of Snake River salmon,(4) the principal factor leading to the decline and subsequent listing of the runs under the protection of the Endangered Species Act (ESA) was the construction and operation of these dams.(5)

We believe that as long as the Snake River salmon runs continue their plunge toward extinction, federal agencies, downstream economic and environmental interests, and Indian tribes with treaty-reserved fishing rights will continue to exert substantial pressure on upper Snake River Basin reservoir operators to release large amounts of water to augment fish flows in the lower Snake and Columbia Rivers.(6) Release of large amounts of water stored in upper Snake River reservoirs could substantially affect Idaho farmers who rely on this water for irrigation, as well as the state's primary electric utility, Idaho Power Company, which relies on this water to generate hydropower. The region must weigh these impacts against those of the only other serious option for recovering the decimated Snake River fish runs--dam breaching and reservoir drawdowns. Mounting biological evidence indicates that breaching the four lower Snake dams and drawing down John Day Reservoir (on the Columbia River) offers a far better likelihood of recovering Idaho's salmon.(7) Moreover, this strategy would allow Idaho to continue to make use of Snake River Basin water for agriculture and power, thereby strengthening its economy. For these reasons, we contend that this alternative makes the most scientific, economic, and political sense for the state of Idaho, the Pacific Northwest, and the nation.

Even before Snake River salmon were listed under the ESA in the 1990s,(8) the Northwest states had implemented a restoration program under the terms of the Northwest Power Act.(9) Despite the expenditure of considerable sums of money,(10) however, the states' restoration program was unable to reverse the decline of Snake River salmon, a fact that the chairman of the interstate agency charged with implementing the program, the Northwest Power Planning Council (Council), recognized on the eve of the ESA listings.(11) The ESA listings led to the institution of what amounts to an interim federal recovery plan for Snake River salmon, which has governed dam operations since 1992.(12) Despite the ESA's reputation as an economically insensitive, preservation-at-all-costs statute,(13) in the section 7 biological opinion that today governs federal dam operations, the National Marine Fisheries Service (NMFS) authorized dam-related salmon mortality of up to eighty-six percent of juvenile sockeye and spring/summer chinook and up to ninety-nine percent of juvenile fall chinook.(14) Although NMFS recognized the need for "major modifications" to the dams,(15) no significant changes have yet occurred. Instead, the current centerpiece of federal agencies' interim salmon restoration efforts continues to be a program of barging and trucking juvenile fish around the dams, a technique that has failed to survive scientific scrutiny.(16) Not surprisingly, federal restoration attempts show no signs of recovering the listed salmon species.(17)

Recognizing the inadequacy of current measures, NMFS has promised to issue a new road map for reconfiguring the hydrosystem to allow for salmon recovery in late 1999, when its current biological opinion on Columbia Basin hydroelectric operations expires.(18) One idea that has gained prominence is permanent reservoir drawdowns--breaching the earthen portions of several dams--to allow restoration of natural river flows.(19)

In 1995, the Indian tribes of the Nez Perce, Umatilla, Warm Springs, and Yakama reservation, which possess treaty fishing rights to Columbia Basin salmon, released their own restoration plan.(20) The tribal plan included long-term permanent drawdowns of the four lower Snake reservoirs and the John Day Reservoir on the lower Columbia to achieve natural river flows.(21) A year later, in 1996, the Council's group of independent scientists issued a report that lent support to the tribes' emphasis on natural river flows by calling for the re-establishment of what the report termed "normative river conditions."(22) The scientists' most prominent recommendation was to restore river habitat by permanently lowering two large reservoirs on the lower Columbia, John Day and McNary, in order to revitalize drowned alluvial reaches and re-establish salmon spawning.(23) The scientists also suggested that lowering the Snake River reservoirs to re-establish natural river flows would be consistent with the report's normative river concept.(24)

Predictably, the discussions concerning drawing down lower Snake River reservoirs to achieve natural river flows generated a wave of political reaction. No Northwest politician endorsed the proposal, and several reacted with hostility, rather than carefully examining it.(25) Senator Slade Gorton (R-Wa.) even sponsored an appropriations rider that would prevent any changes in the operation of Columbia Basin dams absent congressional approval.(26) Yet these dams are hardly the linchpin of the regional economy--the lower Snake River dams were authorized as makework projects,(27) and they provide no flood control and only marginal hydropower, navigation, and irrigation benefits.(28) Moreover, economic analyses indicate that the overall benefits of drawdowns would substantially outweigh their costs, especially for the state of Idaho.(29) Without reservoir drawdowns on the lower Snake, pressure to draft upstream Idaho reservoirs to facilitate salmon migration is likely to increase, either to satisfy the requirements of the ESA, the Northwest Power Act, the Clean Water Act, or Indian treaty rights.(30) The alternative to breaching the lower Snake River dams thus appears to be drafting substantial amounts of water from upper Snake River reservoirs, with potentially adverse effects on irrigated agriculture, power generation, and resident fish.(31)

Idaho could avoid the adverse economic consequences associated with contributing increasing amounts of water stored in Idaho reservoirs if natural river flows were restored by breaching the lower Snake River dams(32) and drawing down John Day Reservoir.(33) Reservoir drawdowns and natural river flows could therefore save both Snake River water and salmon. The Idaho Department of Fish and Game (IDFG) recently concluded that a drawdown to natural river flows "is the best biological choice for recovering [Snake River salmon]."(34) Permanent natural river drawdowns also could form the basis for settling substantial Indian water right claims that the Nez Perce Tribe and the federal government are litigating in Idaho's long-running Snake River Basin Adjudication,(35) as well as satisfy the bulk of Idaho's ESA obligations for Snake River salmon.(36)

This Article makes the case for breaching the lower Snake River dams and drawing down John Day Reservoir to restore natural river flows. Part II provides background on the condition of Snake River salmon, explaining the reasons for their decline and subsequent listing under the ESA, and the recovery options available to NMFS in its 1999 decision. Part III explains the scientific evidence supporting natural river drawdowns. Part IV discusses the economic feasibility of permanent natural river drawdowns because the opponents of such drawdowns have claimed that the economic costs are prohibitive. The reports discussed in Part IV suggest that these costs are in fact affordable. Part V supplies an overview of the legal obligations to protect, restore, and rebuild Snake River salmon, focusing on the ESA, the Northwest Power Act, the Federal Power Act, the Clean Water Act, the Pacific Salmon Treaty, Indian treaty rights, and the federal trust responsibility to the Indian tribes. Part V also discusses how natural river drawdowns may be authorized. The article concludes, in Part VI, that breaching the lower Snake River dams and lowering John Day Reservoir to produce more natural river flows would be the most scientifically sound, cost effective means of restoring the Snake River salmon runs and would also best protect Idaho's economic interests.

II. THE CONDITION OF SNAKE RIVER SALMON AND THE STATUS OF RECOVERY EFFORTS

Once the mainstay of the Columbia Basin salmon runs, all of the Snake River salmon are now either extinct or threatened with extinction.(37) Snake River coho were declared extinct in 1986.(38) Sockeye were listed as endangered under the Endangered Species Act (ESA) in 1991 and continue to teeter on the brink of extinction, with few or no adults returning each year.(39) Chinook were listed as threatened in 1992, and steelhead in 1997.(40) Formerly the most important spawning area for fall chinook in the Columbia Basin through the 1950s with nearly 30,000 spawners,(41) the Snake River runs now average around 900 fish.(42) Snake River spring and summer chinook historically made up nearly one-half of all Columbia Basin spring and summer chinook, with roughly 125,000 adults in the late 1950s, but averaged fewer than 10,000 wild fish during the 1980s.(43) The situation grew so grave that the National Marine Fisheries Service (NMFS), which originally listed the chinook species as threatened in 1992, temporarily downgraded their condition to endangered just two years later.(44) In 1998, NMFS added Snake River steelhead to the list of threatened species, citing a decline from an average of 70,000 through 1970 to fewer than 10,000 in the early 1990s.(45)

Although by the 1960s Snake River salmon runs were less than 10 percent of their predevelopment size, they still averaged over 100,000 adults,(46) as compared with an average of about 20,000 wild and hatchery fish over the past decade, and a total run of barely 2000 fish in 1995.(47) This enormous decline within three decades coincided with the completion of the four lower Snake River dams (see map), all constructed and operated by the Corps. Scientific studies have consistently identified the development and operation of hydroelectric dams as the main cause for the decline of Columbia Basin salmon and steelhead.(48) For example, NMFS concluded that the dams built since 1968 (three of the lower Snake dams and John Day) reduced adult spring/summer chinook smolt-to-adult returns from a sustainable four percent in the 1960s to less than one and one-half percent between 1970 and 1984.49 And the latest scientific evidence shows smolt-to-adult return rates to be less than one-half percent, at least four times below survival levels.(50)

The economic consequences of salmon declines have been devastating. Regional economic losses caused by salmon declines in the Columbia have been conservatively estimated at approximately $500 million per year and 25,000 family wage jobs.(51)

While it is clear that the mainstem dams are the principal culprit in the decline of the Snake River salmon, there are divergent opinions on how to address the problem. For roughly the last twenty years, the Corps has conducted a smolt transportation program, under which juvenile salmon (smolts) have been collected at mainstem dams, loaded on trucks or barges, and transported down river for release below the dams.(52) Despite continuing declines in run sizes, NMFS has maintained this trucking and barging "experiment" under ESA procedures, promising to evaluate the program and decide whether to continue it in 1999.(53) Since everyone agrees that the status quo is unacceptable, the 1999 decision basically involves a choice between two alternatives: 1) continuation of transportation with improved barging techniques, structural improvements at the dams, and likely increased flow augmentation; or 2) breaching the four lower Snake River dams, and also either drawing down or breaching John Day.(54)

The first option, improving the transportation program, superficially sounds appealing and is the most politically palatable, because it would minimize disruption of hydroelectric power generation and navigation. It has a glaring flaw, however: the Corps has employed transportation for two decades, but has failed to recover the fish runs.(55) NMFS's scientists concede that the existing transportation will not reverse the decline of the fish runs, let alone recover them.(56) An "improved" transportation program would rely on the development and installation of an expensive new and unproven technology, surface collectors, designed to increase the number of juvenile migrants collected at the dams, as well as reduce stress to the fish resulting from the collection process.(57) Even if this new technology works, it would not address stress associated with transportation itself, the genetic selectivity of the transportation program, or transportation's potential disruption of the smolts' homing capabilities.(58) Further, surface collector test results are not encouraging and, even if problems can be overcome, development of the technology could take ten years, with an even longer period for testing and implementation(59) Moreover, recent survival figures for transported fish are less than one-half of one percent adult returns from smolts in 1997 and 1998, far below the two percent thought necessary to recover the salmon runs.(60) An "improved" transportation program is hardly likely t0 result in the 400 percent increase in survival needed to produce sustainable fish runs.

An attempt to restore salmon through an improved smolt transportation program will almost surely include increased flow augmentation to speed smolt travel to the collection facilities, as well as to improve the survival of fish that escape collection. Under the ESA, the Corps contributes about one million acre-feet of water from Dworshak on Idaho's Clearwater River, and the Bureau of Reclamation contributes 427,000 acre-feet of water from upper Snake River reservoirs.(61) These storage releases to supply fish flows remain quite controversial among Idahoans,(62) prompting both judicial challenges and legislative action(63) Moreover, since 1994, the Northwest Power Planning Council (Council) has called for an additional one million acre-feet of water to augment fish flows from upper Snake Basin reservoirs,(64) A consultant's report indicated that this amount of water was available through a variety of sources,(65) but the Bureau of Reclamation and NMFS have thus far declined to seek it.(66) Although the Idaho Department of Fish and Game (IDFG) has recognized that increased flows is the only element of improved transportation program that has scientific data supporting it,(67) the state of Idaho continues to oppose increased flow augmentation as ineffective and disruptive to other water users.(68) Nevertheless, the latest data shows a strong relationship between higher river flows, colder water temperatures, and salmon survival in the lower Snake River, particularly for juvenile fall chinook that migrate downstream in the summer.(69)

The other alternative--breaching the dams to allow natural river flows--has growing scientific support, although it faces considerable political skepticism. This natural river flow alternative has been called by the Corps's consultants "the biological option of choice if salmon and ecosystem restoration is the primary goal."(70) The Council's independent group of scientists endorsed permanent reservoir drawdowns to expose and revitalize alluvial reaches currently drowned behind mainstem reservoirs in order to re-establish historic spawning grounds.(71) IDFG concluded that the "natural river option is the best biological choice for recovering salmon and steelhead in Idaho ... with the highest certainty of success and lowest risk of failure, and is consistent with the preponderance of scientific data."(72) Whether NMFS will choose the dam breaching option or the improved transportation option will not be known until at least December 1999. However, given the growing biological support for restoring natural river flows by breaching the dams, the key determinant to implementation of permanent reservoir drawdowns seems likely to be their perceived economic costs.(73)

III. THE EMERGING SCIENCE OF RESTORING NATURAL RIVER FLOWS BY DAM BREACHING

In recent years several scientific reports have called into question the efficacy of continued reliance on truck and barge transportation of juvenile salmon as the linchpin of Snake River salmon recovery efforts. These reports have suggested that recovery efforts ought to focus on restoring natural river conditions. Perhaps the most prominent of these studies is the peer-reviewed studies by the scientists participating in the Plan for Analyzing and Testing Hypotheses (PATH), which endorsed the natural river option in 1998.(74)

A. The Detailed Fishery Operating Plan, 1993

In November 1993, federal and state fishery agencies and treaty Indian tribes, through the Columbia Basin Fish and Wildlife Authority,(75) prepared a comprehensive plan for operating the Columbia Basin dams in a manner compatible with salmon migration.(76) The plan advocated seasonal reservoir drawdowns and flow augmentation to help restore more natural river conditions.(77) The fishery agencies concluded that barge and truck transport of juvenile salmon could not overcome poor river conditions created by the operation of the federal Columbia River Power System and noted that transportation had failed to halt the decline of the Snake River species.(78) The state agencies recommended restricting use of transportation to a "last resort"--to be used only after implementation of all other passage measures failed to provide safe passage for juvenile salmon.(79) The tribes opposed continuation of transportation under any circumstances.(80)

The plan called for drawdowns of the lower Snake River reservoirs to "minimum operating pools" between April 15 and December 1 of each year,(81) seasonal drawdowns that have subsequently been discredited as being of questionable efficacy given their cost.(82) The plan also endorsed significant amounts of flow augmentation both from Dworshak Reservoir on the Clearwater River and from reservoirs in the upper Snake Basin, calling for 927,000 acre-feet from upper Snake reservoirs in 1994, and 1.927 million acre-feet in 1998.(83) A 1994 report of the Council's Snake River Basin Water Committee indicated that over a million acre-feet of water, above and beyond the 427,000 acre-feet for flow enhancement called for in the Council's 1991 program and NMFS's 1993 Biological Opinion (BiOp),(84) was available through a combination of initiatives, including a conjunctive ground and surface water program, dry year water leases, and land fallowing.(85)

B. The Independent Peer Review of Transportation, 1994

After NMFS's 1993 biological opinion on the operation of the federal Columbia River Power System relied heavily on truck and barge transportation(86)--an opinion that caused a federal district judge to suggest that salmon recovery efforts needed a complete restructuring(87)--representatives of NMFS, the U.S. Fish and Wildlife Service, state fisheries agencies, and treaty Indian tribes convened a peer review panel to study the scientific issues of the transportation program.(88) The ensuing report, completed in May 1994, concluded that the transportation program approved by the NMFS BiOp was "unlikely to halt or prevent continued decline and extirpation of listed species of salmon in the Snake River Basin."(89) The report noted that while transportation provides "a temporary respite" from dam-related mortalities, it fails to protect salmon from mortalities associated with river system conditions that exist throughout the salmon life cycle.(90) Therefore, the report explained, "[i]n terms of effecting a program of salmon recovery, it really does not matter if the transported salmon survive at a higher rate than untransported salmon, unless the overall survival rate for the population is sufficient to [recover the species]."(91)

The Independent Peer Review criticized the transportation program for proceeding in the absence of a standard for hydroelectric project passage survival, observing that this lack of a standard made the utility of transportation "highly speculative," despite preliminary indications that some species of salmon seemed to benefit from transportation under the river conditions existing at the time the transportation experiments were conducted.(92) Moreover, the report questioned a key assumption of the preliminary studies showing that transportation benefits salmon explaining that "[f]ish appeared to be similarly handled and marked" regardless of whether they were transported or designated for in-river migration.(93) Thus, the report suggested that the key premise underlying studies showing that transportation could benefit salmon--that fish handled and marked and returned to the river as in-river "control" fish suffered no mortality as a consequence of this handling and marking--had not been adequately tested and could be flawed.(94) This fact, coupled with transportation's potential to induce aberrant homing behavior, adverse genetic effects, and stress, resulting in increased vulnerability to predation and disease,(95) led the scientists to conclude 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."(96)

C. The 1994 Amendments to the Columbia Basin Fish and Wildlife Program

The 1994 amendments to the Columbia Basin Fish and Wildlife Program adopted by the Northwest Power Planning Council (Council) incorporated a phased approach to Idaho Governor Cecil Andrus's suggested seasonal drawdown plan.(97) The amendments also called for undertaking "a mainstem experiment" in which an approximately equal number of fish would be transported as would be allowed to migrate in-river.(98) This experiment would require decreasing the number of fish transported to allow a comparison of the ability of transported versus in-river fish to produce returning adults.

Except for the mainstem experiment, the Council voted to restrict transportation to "extremely adverse" river conditions, essentially low water years.(99) Although the Council did approve transportation in the short term, especially under low river flow conditions, it warned that barging and trucking salmon "should not be regarded as a substitute for changes in the river ecosystem" or "as a device to delay substantial improvements in in-river survival conditions."(100)

D. The National Research Council Report, 1995

In 1992, the National Research Council formed the Committee on Protection and Management of Anadromous Salmon to review the population status, habitat, and environmental requirements of Pacific salmon species in the Pacific Northwest.(101) The committee gave only qualified endorsement to continued transportation in the short run, citing studies showing increased survival of transported fish compared to fish migrating in-river(102) However, the committee failed to consider the fact, as recognized by the Independent Peer Review of Transportation,(103) that in-river fish suffer stress as a result of marking and handling due to the transportation program, and it also seemed to assume that river conditions could never be improved.(104) Nevertheless, the report did endorse a policy of reliance on natural river functions in the long run, endorsing

   a pragmatic approach to improving the situation that relies on natural
   regenerative processes in the long term and the selected use of technology
   and human effort in the short term ... rather than on a primary emphasis on
   substitution, i.e., the use of technologies and energy inputs, such as
   hatcheries, artificial transportation, and modification of stream
   channels.(105)

E. The Tribal Restoration Plan, 1995

In June 1995, the treaty fishing tribes of the Columbia Basin released Wy-Kan-Ush-Mi Wa-Kish-Wit (Spirit of the Salmon), their salmon restoration plan.(106) The tribal plan completely eschewed artificial transportation of juvenile salmon, advocating instead permanent reservoir drawdowns to restore natural river functions.(107) The tribes called for a long-term goal of achieving "mean historical flows" during the juvenile migration season and reducing dally and hourly fluctuations in flows occasioned by peak power operations.(108) To help achieve these river flows and to restore ecosystem functions, the tribal plan called for permanent reservoir drawdowns.(109)

The tribes recommended the immediate termination of artificial transportation, noting that halting transportation would allow the testing of alternative passage measures foreclosed because of the transportation program.(110) The tribal call for the termination of the transportation program was hardly radical; a year earlier the four-state Northwest Power Planning Council also called for terminating artificial transportation, albeit only in the long term.(111)

F. The Independent Scientific Group Report, 1996

The Northwest Power Planning Council established the Independent Science Group (ISG) in 1994. Comprised of eminent scientists and structured to insulate them from political influences, ISG's purpose was to analyze the science underlying the Council's fish and wildlife program and suggest a scientific conceptual foundation for the program.(112) In 1996, ISG issued its report, which criticized the Council's program for lacking a coherent conceptual foundation, and recommended a program grounded on what it called "normative river conditions," or the restoration of ecological processes consistent with the needs of native fish and wildlife species.(113) The scientists faulted salmon restoration efforts for relying on failed technological fixes, like hatcheries and artificial transport of juvenile salmon, and suggested that it was unlikely that technology would ever substitute for a natural river system.(114) ISG noted that these technologies were adopted with little or no scientific study and recommended that in the future such measures should bear the burden of proof, being implemented only after intensive evaluation.(115)

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."(116) This conclusion was the result of the scientists' finding that artificial transport cannot provide "the minimum survival rates necessary for the maintenance of population levels . let alone those survival rates necessary for rebuilding of salmon populations."(117) Instead of barging juvenile salmon around the dams, the ISG report called for restoration of river flows as close as possible to the hydrograph that existed in the predam era and for maintenance and restoration of mainstem spawning habitat like the undammed Hanford Reach on the mid-Columbia, the last free-flowing stretch of the mainstem Columbia or lower Snake Rivers.(118) To accomplish mainstem habitat restoration, ISG recommended permanent reservoir drawdowns, specifically suggesting that the John Day or McNary Reservoirs be lowered to expose alluvial reaches that historically supported salmon spawning.(119) The report also noted that drawdowns of the lower Snake reservoirs would be consistent with its normative river concept.(120) The scientists called attention to the restoration of mainstem habitat, rather than tributary habitat, because it was the mainstem that historically supported metapopulations of salmon,(121) and the scientists argued that restoration efforts should focus there.(122) Restoring mainstem spawning habitat will require permanent reservoir drawdowns.(123)

G. The Idaho Department of Fish and Game Report, 1998

In May 1998, the Idaho Department of Fish and Game (IDFG) issued a report on the causes of the decline of Idaho salmon and the available options for recovery.(124) The report concluded that the primary cause of the decline of Idaho salmon was the construction and operation of dams built in the 1960s and 1970s.(125) The report also observed that the transportation program "has not compensated for the dams and is unlikely to provide recovery."(126) IDFG called for the establishment of a two to six percent smolt-to-adult survival standard for recovery(127) and embraced the independent scientists' concept of a "normative river" as the best means to achieve this standard.(128) The report observed that "[a]available data provide no indication [the current transportation program] can sustain a 2-6% smolt-to-adult survival" and noted that current operations also fail to meet both 24- and 100-year survival standards.(129)

With status quo not a viable option, the IDFG report considered two available alternatives: an enhanced transportation program or restored natural river flows. It rejected transportation for three reasons: 1) uncertainties over the efficacy of untested surface collectors (which would be at the heart of the program), 2) the fact that it would take over a decade for surface collectors to be tested and installed, and 3) the fact that an enhanced transportation program would doubtless require additional Idaho storage water to flush salmon smolt through the reservoirs to collection stations.(130) IDFG concluded that existing "data does not indicate flow augmentation can provide enough survival benefits for recovery," citing Idaho's comments to NMFS claiming that "[h]istorical water velocities cannot be attained with the current reservoirs, even using all reservoir storage in the basin."(131) As a result, IDFG endorsed the natural river option, noting that it had "a high likelihood of meeting recovery standards" if in fact barging has not compensated for the effects of the dams, which IDFG determined it had not.(132) The report concluded that "the natural river option is the best biological choice for recovering salmon and steelhead in Idaho. This assessment is logical, biologically sound, has the highest certainty of success and lowest risk of failure, and is consistent with the preponderance of scientific data."(133)

H. The PATH Preliminary Decision Analysis Report and Weight of Evidence Workshop, 1998

The Plan for Analyzing and Testing Hypotheses (PATH) is an interagency working group of twenty-five scientists created by NMFS's 1995 BiOp.(134) The BiOp charged PATH with evaluating alternative models for Snake River salmon recovery in order to help NMFS make its 1999 decision on continued transportation versus dam breaching on the basis of the best scientific advice possible.(135) PATH is to review the scientific uncertainties affecting salmon survival and "using expert judgment, based on all existing evidence, to quantify the relative degree of belief in ... conflicting hypothesis about the effects of management actions on stock performances."(136) PATH studies follow structured scientific procedures developed by scientific consensus and are peer reviewed.(137) In a March 1998 report, PATH scientists compared three alternatives under three computer models: 1) status quo, 2) maximum transportation without surface collectors, and 3) natural river drawdown.(138) Under one computer model, Fish Leaving Under Several Hypotheses (FLUSH), the natural river drawdown was the best alternative, but the other model, Columbia River Salmon Passage (CRISP), found drawdowns to be the worst alternative.(139)

A revised analysis in August 1998, however, concluded natural river drawdown was the best alternative for recovery in the long-run, with close to one hundred percent likelihood of recovery over forty-eight-year and one hundred-year time periods.(140) The CRISP model remained considerably more optimistic about short-term (twenty-four-year) recovery under the transportation alternative than the FLUSH model (sixty-one percent chance of meeting the survival standard versus a ten percent chance), but it still found natural river drawdowns to be superior to transportation (seventy-six percent chance of meeting the survival standard versus a sixty-one percent chance).(141) The FLUSH model produced a much lower probability of survival under the transportation alternative, with just a ten percent chance of meeting the survival standard in the short run (twenty-four-year period), a twelve percent chance in the mid-term (forty-eight-year period), and a thirty-seven percent chance in the long run (one hundred-year period).(142)

After analyzing the August 1998 PATH results, staff of IDFG determined that, in light of recent smolt-to-adult returns of transported fish of less than one-half percent, survival rates remain four to twelve times below that required for salmon recovery.(143) The staff concluded:

      The natural river option is now the best biological choice regardless of
   which aggregate hypotheses (model) is used. The natural river option is the
   only recovery strategy that is robust for the fish under both aggregate
   hypotheses and a variety of assumptions.... Under the natural river option,
   Snake River fall chinook recovery could approach levels evident in the
   Hartford Reach, which provides a highly productive fishery.(144)

A report from a PATH "weight of the evidence" workshop held in Vancouver, British Columbia in September 1998 provided what might be the strongest scientific endorsement of breaching the lower Snake dams. The weight of the evidence process, probably the most difficult chore of the PATH scientists, is an attempt scientifically to assess competing models and theories about alternative management actions on salmon survival.(145) Four PATH scientists, chosen because they had no direct links to the Pacific Northwest,(146) concluded that breaching the lower Snake dams would double the chances for recovering Snake River spring/summer chinook populations within forty-eight years.(147) According to the scientists, breaching would improve recovery chances to seventy-nine percent from the forty percent chance under current operations.(148) Barging all possible fish would actually lower the chances of recovery to thirty-five percent.(149) The Chief of Fisheries for the Oregon Department of Fish and Wildlife concluded that this report showed that the scientific debate was settled in favor of breaching the dams; what remains, he suggested, was whether the region was willing to pay the social and economic costs of breaching.(150)

The final PATH report for 1998 confirmed that Snake River reservoir drawdowns would give all salmon stocks the best chance of recovery.(151) The report concluded that natural river drawdowns would produce a one hundred percent probability of recovering fall chinook, and a forty-seven to sixty-five percent chance of recovering spring/summer chinook, depending on how soon dam breaching got underway. By contrast, the report estimated the recovery chances under both current operations and under a maximum transportation alternative at just fifteen to thirty-five percent.(152)

I. Summary

These studies show that the emerging consensus of the scientific community is that the centerpiece of current recovery efforts, the trucking and barging of juvenile salmon, is a failure and will not restore populations of Snake River salmon. They also illuminate the growing scientific agreement that modifying the dams and restoring more natural river conditions by drawing down mainstem reservoirs is the best option to save Snake River salmon.

IV. THE ECONOMICS OF NATURAL RIVER DRAWDOWNS

Historically, there were four reasons for building dams: 1) flood control, 2) hydropower production, 3) irrigation and water supply, and 4) navigation. Recreation, while not generally a reason for building dams, is now regarded as a fifth category of public benefit. Each of these perceived public benefits carries with it certain costs. Frequently, however, the perceived benefits of dams are fully quantified and overstated, while the costs are greatly understated or ignored. Traditional cost-benefit analysis did not calculate true social costs, such as environmental damage, amortized dam operations and maintenance, and support subsidies. Environmental damages were excluded from the economic cost-benefit balance sheet because their impacts were dispersed or more difficult to quantify than the benefits. However, these externalized costs did not disappear--they either became a net drain on the regional economy or reappeared as costs to taxpayers or ratepayers. In the case of the once abundant Columbia Basin salmon runs, the economic drain to the regional economy from these losses has been substantial--as much as $500 million per year, costing up to 25,000 jobs.(153)

The economic benefits associated with the four lower Snake River dams are considerably less than many other dams. This is not altogether surprising, considering that in the 1930s the Corps of Engineers informed Congress that damming the lower Snake would cost one dollar for every fifteen cents returned in benefits.(154) Today, these dams provide no flood control benefits and little irrigation.(155) And their hydroelectric production amounts to less than five percent of the Northwest's electric generation.(156) Their chief economic benefit is navigation: they allow Lewiston, Idaho, 465 miles from the ocean, to be a deep water seaport. But the barge traffic that the navigation channel provides is some of the most subsidized transportation in the country.(157)

With the science increasingly pointing toward natural river drawdowns as the best means of restoring Snake River salmon, the chief issue is whether such a course of action is affordable. A series of recent economic analyses suggests that permanent reservoir drawdowns to restore natural river flows are a viable economic option. This section discusses six of those reports.

A. The Harza Report, 1996

In October 1996, Harza Northwest, under contract with the Corps of Engineers, issued a report analyzing the economic feasibility of salmon recovery options, including reservoir drawdowns.(158) The report concluded that permanent natural river reservoir drawdowns were ten times less costly and three times faster to implement than seasonal reservoir drawdowns.(159) Harza estimated that permanently drawing down the four lower Snake reservoirs to restore natural river flows would increase salmon survival by about seventy-two percent over the status quo(160) and that run sizes could be doubled with passage improvements to lower Columbia River dams.(161) The report suggested that the cost of natural river drawdowns could be reduced by planning for drawdowns in stages, drawing down two reservoirs by 2004 and the other two by 2010. This would allow navigation, recreation, and hydropower users to develop alternatives in an orderly manner; costs could be reduced further by eliminating expensive studies and measures to improve the transportation program and to rehabilitate the four lower Snake dams. Harza estimated that the annual cost of dam removal would be $75 million to $153 million.(162) In contrast, Harza estimated the cost of the transportation program authorized by the current NMFS BiOp, including flow augmentation, at about $200 million annually.(163)

B. The Idaho Statesman Report, 1997

On July 20 to 22, 1997, the Idaho Statesman, a daily newspaper published in Boise, published a three-day special report on the feasibility of breaching the lower Snake dams to re-establish natural river flows. The report concluded that "[b]reaching is an effective way to save taxpayers and electricity ratepayers the expense of maintaining and fixing dams, boost the region's economy by $248 million, end the burden of the Endangered Species Act, protect Idaho water and restore economic balance."(164) The report suggested that breaching the dams would be "an effective way to restore fish runs to the levels of the 1960s, when 75,000 adult salmon returned to Idaho streams and rivers," and that, without breaching, there is a "high probability" that Idaho salmon will disappear.(165) According to the report, breaching would save a $98 million per year subsidy to barge navigation, create a healthy fishery producing $150 million for Idaho's economy,(166) provide another $98 million in income for the Nez Perce tribe, and aid Idaho irrigation by reducing or eliminating the need for Idaho storage water to flush juvenile salmon to the sea.(167)

The Statesman report noted that the four lower Snake reservoirs produce less than five percent of the Northwest's electric power,(168) which can be replaced at competitive prices. The dams also supply water to only thirteen heavily subsidized irrigators and provide no flood control benefits.(169) Overall, the report estimated the annual costs of breaching the dams to be $509 million, while the annual benefits of breaching would be $692 million, a net benefit of $183 million annually.(170) The report concluded that "[c]ivilization progresses by using the experience of the past to make life better for the next generation. With the advantage of three decades of hindsight, it is easy to see that breaching would put the Northwest back on track."(171) Thus, the leading newspaper in the state of Idaho, not known for endorsing extreme environmental policies,(172) adopted dam breaching as the most cost-effective solution to recovering Snake River salmon.

C. The Breaking the Deadlock Report, 1997

In 1997, Cyrus Noe, editor of Clearing Up, a weekly report on Northwest energy and fish and wildlife developments, persuaded a group of representatives from diverse groups throughout the Pacific Northwest to meet and discuss the future of Columbia Basin fish and wildlife recovery efforts. After six months, the group issued a report that endorsed the setting of specific biological objectives to guide fish and wildlife recovery and the establishment of a integrated fish and wildlife plan grounded on sound science.(173)

To understand the economic implications of potential reservoir drawdowns on the Bonneville Power Administration (BPA), the region's federal power marketing agency, the group asked the staff of the Northwest Power Planning Council to perform a "reconnaissance level" cost analysis.(174) The staff analyzed a variety of scenarios, including continuation of current operations, drawdown of the lower Snake reservoirs and John Day Reservoir to natural river levels by 2007, and a staggered drawdown that would take place between 2006 and 2018.(175) The affordability of each scenario was found to be a function not of the costs of reservoir drawdowns, but instead a function of the market price of BPA power.

If the price of BPA power remains around 20 mills,(176) the report concluded that "[BPA customers] will do well over the long term, whether the five dams are drawn down or not."(177) If market prices fall to 16 mills, BPA would lose about $50 million per year even under current operations.(178) Drawdowns by 2007 under a 16 mill scenario would produce losses less than BPA's annual debt payment to the U.S. Treasury, an average of about $200 million per year for 20 years, then would yield net benefits of about $80 million thereafter.(179) A staggered drawdown scenario would cut the losses in half during the first decade, then would produce net revenues thereafter of about $100 million annually.(180) At 20 mills, drawdowns by 2007 would produce annual losses during only 6 of the 30-year study period, and net benefits would reach nearly $400 million annually during the second decade.(181) The staggered drawdown would produce a benefit almost immediately, averaging around $300 million annually.(182)

D. The Lansing Report, 1998

A report by economist Philip Lansing, produced for the Oregon Natural Resources Council Fund, explored not just the economic costs of natural river restoration but also the net economic benefits of restored river flows.(183) The report defined net economic benefits as the economic costs to society after all costs are accounted for and concluded that, when all costs and benefits are considered, natural river flows would save $87 million annually.(184) The report estimated that the actual current cost of the lower Snake dam operations exceeds $236 million annually, including operation and maintenance costs, salmon recovery costs, and :navigation and irrigation subsidies.(185) The cost of restoring natural river flows, on the other hand, was estimated at $149.5 million, including providing replacement power, alternatives to navigation, and purchasing farmlands.(186)

Although the Lansing report's methodology was endorsed by the Chairman of the University of Montana's Department of Economics,(187) it probably underestimated the costs of drawdowns, as it did not consider a drawdown of John Day Reservoir, and probably overestimated the savings, because it assumed there would be no flow augmentation after the reservoirs were drawn down. Further, the Northwest Power Planning Council's Independent Economic Analysis Board called into question the report's conclusion of net economic benefits from dam breaching, criticizing its assumptions that 1) $195 million could be saved in flow enhancement, monitoring, research, and habitat restoration costs; and 2) replacement cost power could be purchased for 1.6 mills.(188) The advisory board concluded that not all of the $195 million could be avoided, and that replacement cost power would likely cost around 2.0 to 2.5 mills, increasing costs by 50%, or around $65 million.(189)

Nonetheless, the Lansing report's main finding remains intact: the net economic benefits of the four lower Snake River dams are less than their total operation and maintenance costs, subsidies, and mitigation costs. Of the four benefit areas typically provided by dams (flood control, hydropower, irrigation and navigation), Lansing concluded that only navigation benefits are economically significant for the four lower Snake dams. But even there, the costs of river transport as a whole (including the costs of dam maintenance, salmon mitigation measures, and ratepayer subsidies) are actually greater than for equivalent transport by rail or other more traditional means.(190)

E. The Goodstein Report, 1998

An economic report that was less optimistic about the economic savings associated with dam breaching was produced by Eban Goodstein for the PEW Charitable Trusts.(191) Goodstein, an economics professor at Lewis and Clark College, reviewed the literature on breaching the lower Snake dams and, using conservative assumptions, concluded that the economic benefits of breaching the dams would be roughly equal to the costs of dam removal.(192) Unlike Lansing, Goodstein did not assume that all of the costs of flow enhancement would be saved.(193)

According to Goodstein, the costs of removing the dams--including lost electricity, extending irrigation pumps, lost navigation to Lewiston, and lost flatwater recreation--will range from $122 million to $288 million annually.(194) Most of the uncertainties concern lost power costs.(195) The economic benefits--including avoided dam operation and maintenance costs, avoided fish and wildlife mitigation costs, avoided subsidies to navigation, free-flowing recreation benefits, and increased fish harvests--would range from $116 million to $193 million annually.(196) Although Goodstein concluded that the economic costs and benefits of breaching the lower Snake dams would be "roughly comparable," he observed that if "existence value"(197) of restored salmon runs were included, the benefits of dam breach would "clearly overwhelm a hundred million dollars or so of foregone electricity."(198)

F. The Northwest Power Planning Council Report, 1998

In June 1998, the Northwest Power Planning Council (Council) refined the reconnaissance analysis its staff performed for the Deadlock Report,(199) and issued a report on BPA's net revenues under a variety of scenarios, including several involving natural river drawdowns.(200) The report essentially reiterated the conclusion of the earlier reconnaissance study that the chief variable for BPA net revenues is not fish and wildlife scenarios but the market price of power.(201) Under high market prices, BPA would experience positive net revenues under all fish recovery scenarios, including a five-reservoir drawdown scenario.(202) With medium market prices, BPA would have positive net revenues under all but the most costly scenario, a five-reservoir drawdown coupled with flows and dam modifications necessary to comply with the Clean Water Act.(203) Under low market conditions, BPA would experience negative revenues under any scenario increasing its costs.(204)

The Council report assumed continuation of the numerous subsidies targeted for elimination in the Lansing report.(205) Further, it made no attempt to calculate benefits in order to arrive at recommendations to achieve net social benefits. Nevertheless, the Council report did indicate that a five-dam drawdown is affordable under both the high and medium market price scenarios. Only under a persistent low market price scenario--which the report described as "not very likely but possible"--would natural river drawdowns threaten BPA's marketplace competitiveness.(206) The Council's conclusions were largely confirmed by a subsequent BPA briefing paper on funding the cost of fish recovery scenarios.(207)

G. Summary

These economic studies indicate that natural river drawdowns are affordable under the most probable marketplace scenarios, even assuming continuation of the subsidies identified by the Lansing report.(208) In fact, both the Lansing and Statesman reports expressly factored in the costs of economic mitigation such as providing for alternative sources of electricity, alternative rail or truck transportation, and alternative means of water diversions.(209) Only if improbably low-market conditions persist for extended periods of time are natural river drawdowns of questionable affordability. Even then, adopting and implementing contingency plans that discontinued the subsidies if low-market conditions endured could save some $4.7 billion over a 20-year period, providing the equivalent of a substantial contingency reserve.(210)

Institution of transmission line charges could also raise significant revenues without making BPA power uncompetetive.(211) Moreover, the Council report's assumption that BPA's rates must cover all fish and wildlife costs under all scenarios(212) may not obtain. It is possible, for example, that a combination of eliminating subsidies, restructuring BPA's U.S. Treasury obligations, and congressional appropriations could make natural river drawdowns affordable even under the unlikely scenario of low-market conditions for twenty years. Even in a worst-case economic scenario for Northwest electric rates, natural river drawdowns would produce only about a ten percent increase to Northwest ratepayers who currently pay an average of forty percent below the national average.(213)

V. THE LAW OF NATURAL RIVER DRAWDOWNS

The initial decision on whether to endorse natural river drawdowns will come with NMFS's reconsideration of its biological opinion on the operation of the Columbia Basin hydroelectric system in December 1999.(214) This decision will be subject to the standards of the ESA, as will the implementing agencies' decision whether to follow the NMFS opinion. Although the ESA will dominate the legal landscape during the next couple of years, the Northwest Power Act, the Federal Power Act, the Clean Water Act, Indian treaty fishing rights, and the Pacific Salmon Treaty could also affect the drawdown decision. This section considers each of these requirements and also the need to reauthorize the dams to allow the drawdowns to take place.

A. ESA Decision Making

The operative fish recovery plan for Columbia Basin salmon is the March 1995 NMFS biological opinion (BiOp), which has governed Columbia Basin dam operations since that time.(215) The BiOp concluded that dam operations would jeopardize the continued existence of listed Columbia Basin salmon unless operating agencies adopted a "reasonable and prudent alternative," which included improved dam bypass, increased flows and spills, and an improved barge and truck transportation program.(216) NMFS expects to revise this BiOp in December 1999.(217) At that time, its decision will be subject to judicial challenge, as the Supreme Court recently made clear,(218) so it is important to understand the standards governing both NMFS's discretion in issuing the BiOp and the operating agencies' discretion in implementing it.

1. NMFS's Jeopardy Decision

The ESA prohibits all federal actions that could jeopardize the continued existence of listed species or that adversely affect their designated critical habitat.(219) Agencies whose actions may affect listed species of anadromous fish must "consult" with NMFS pursuant to section 7 of the ESA.(220) "Consultation" is somewhat of a misnomer, because this process essentially allows NMFS to direct decisions of the action agencies.(221) NMFS justifies its conclusions as to whether the federal action will jeopardize the species' continued existence or adversely modify its critical habitat in a "biological opinion."(222) When making these determinations, NMFS must evaluate both the current status of the listed species and the effects of proposed federal actions, including cumulative effects, on the species.(223) If NMFS decides that a proposed action is likely to jeopardize the continued existence of the species, as it did in connection with federal Columbia Basin dam operations,(224) NMFS must discuss the availability of reasonable and prudent alternatives that can be taken by the agency to avoid jeopardy.(225) The standard of review used by courts in the Ninth Circuit to review NMFS BiOps is the deferential arbitrary and capricious standard.(226) However, closer judicial review is warranted by the federal government's trust obligation to the Indian tribes when federal actions threaten treaty rights,(227) by the tribes' status as comanagers of the salmon resources,(228) and by the nonexclusive nature of scientific information concerning salmon.(229)

Despite this deferential standard of review, the federal district court of Oregon determined in 1994 that NMFS's 1993 BiOp on dam operations reflected arbitrary decision making and struck it down.(230) Judge Marsh concluded that the 1986 to 1990 baseline for salmon survival against which NMFS chose to measure biological effects of proposed 1993 hydroelectric operations was flawed because it focused "more upon system capability than upon the needs of the species."(231) The court noted that the years NMFS selected for the baseline were drought years of extremely low salmon runs, making it relatively easy to conclude the proposed dam operations would not produce a significant reduction in salmon mortality.(232) The upshot was an arbitrary preservation of a status quo situation that allowed all forms of river activity to proceed from "a deficit situation."(233) The BiOp also violated the ESA by disregarding worst-case risk assumptions.(234)

Judge Marsh counseled NMFS that in order to produce a BiOp that satisfied the ESA's standard of making decisions based on the "best scientific and commercial data available,"(235) it should consider "significant information and data from well-qualified scientists . from the states and tribes."(236) This directive to consult state and tribal biological experts means that the scientific studies discussed in Part III cannot be ignored in NMFS's 1999 BiOp. Moreover, Judge Marsh's admonition that the ESA demands more than "relatively small steps, minor improvements and adjustments ..., [suggesting instead] a major overhaul" in system operations,(237) is one that will surely influence review of the 1999 BiOp.

In April 1997, only three years after his call for "a major overhaul" of system operations, Judge Marsh upheld a revised NMFS BiOp, developed to satisfy his earlier decision, as not being arbitrary or capricious.(238) Even though the BiOp authorized juvenile salmon mortalities of up to eighty-six percent of juvenile Snake River sockeye and spring/summer chinook salmon and up to ninety-nine percent of fall chinook, and even though Judge Marsh expressed some doubt as to the high level of risk that NMFS chose to tolerate,(239) he upheld the revised BiOp. The court noted that NMFS claimed to be implementing an "ecosystem management approach" to salmon recovery, that there were competing ecological considerations due to concerns for other species, which limited the availability of river flows for salmon, and that the basin's states and Indian tribes disagreed as to whether the NMFS BiOp was adequate.(240) This judicial acceptance of NMFS's BiOp will probably allow the current transportation program to proceed until at least 1999, when NMFS has promised to reconsider it.(241)

2. Implementing the BiOp

In the case of BiOps on Columbia Basin dam operations, NMFS opinions are implemented by the federal agencies that operate and regulate the basin's dams: the Corps of Engineers, the Bureau of Reclamation, and the Federal Energy Regulatory Commission.(242) Courts have enjoined agency actions for failing to undertake mitigation measures specified by a BiOp and clearly give deference to the biological expertise reflected in the BiOps.(243) One court noted that while an action agency is "technically not bound" by a BiOp, "an agency which attempts to proceed with an action in the face of a critical [BiOp] will almost certainly be found to have acted arbitrarily and capriciously and contrary to law."(244) The federal agencies operating and regulating Columbia Basin dams will therefore depart from the directives in the BiOp at considerable risk of judicial disapproval.

The question of whether operating agencies may deviate from the terms of NMFS's BiOp is currently before the Ninth Circuit.(245) In its 1995 BiOp, NMFS included as an element of its reasonable and prudent alternative a drawdown of the reservoir behind John Day dam to its minimum operating pool (MOP).(246) NMFS included this measure as part of an effort to increase the survival of juvenile migrants by increasing the velocity of the Columbia River, citing a study by the Council that found that lowering the John Day pool would be equivalent to augmenting Columbia River flows by three million acre-feet.(247) Although included in this measure is a requirement to mitigate adverse impacts to other river users,(248) it has proven extremely controversial. Some interests regard drawdown to MOP as the first step toward natural river drawdowns at John Day and elsewhere, and have thus opposed even this modest lowering of a reservoir.(249) Although still studying MOP operations as part of its deliberations on the future of the hydrosystem, the Corps has made no move toward actually implementing this element of the BiOp. Frustrated by this inaction, a coalition of environmental and fishing interests have included a challenge to the Corps's failure to fully implement the BiOp as one of the central issues in a pending appeal to the Ninth Circuit involving the 1995 BiOp.(250) The court's decision will provide an indication as to the weight operating agencies must give NMFS's upcoming 1999 BiOp in deciding the future of the four lower Snake dams.

3. The Effect of Not Breaching the Lower Snake Dams on Upper Snake Water

NMFS's 1999 decision holds major implications for other federal agencies--particularly the Bureau of Reclamation--as well as private parties in the upper Snake Basin.(251) Depending on whether or not NMFS opts for breaching the dams, these upstream interests in Idaho stand to lose considerably in terms of their control over river operations, flexibility in operating practices, and their ability to continue to access water supplies currently used for farming and other purposes.

The Bureau of Reclamation operates a number of projects on the upper Snake system that have major effects downstream on listed salmon species, particularly through alteration of flow regimes.(252) These include the Minidoka project, which stores roughly four million acre-feet of water used by irrigators across southern Idaho. Until now, the Bureau has met its obligation to provide 427,000 acre-feet of "salmon" water under the existing NMFS BiOp through a combination of measures, including use of uncontracted water in federal facilities, and leasing water on a "willing buyer/willing seller" basis.(253) The Bureau has complied with Idaho water laws in the process by seeking approval from the Idaho Department of Water Resources for changes in the nature and place of use for this water(254) and by securing temporary legislative approval allowing the Bureau to "export" the water downstream for salmon purposes.(255)

While Idaho irrigators and politicians have grudgingly accepted the Bureau's "export" of the 427,000 acre-feet over the past few years, all bets may be off depending on NMFS's decision in the 1999 BiOp. Nonbreaching options for recovering salmon will doubtless require increased flows in the Snake River, requiring substantially more water out of the upper Snake than the 427,000 acre-feet currently required from the Bureau.(256) Indeed, in 1994 the Northwest Power Planning Council called for an additional one million acre-feet annually,(257) and considerably more water than that may be necessary to improve smolt migration and survival if the lower Snake dams are not breached.(258)

This scenario poses substantial threats to Idaho irrigation and other interests, pitting the ESA requirements against state water rights--a legal battle that Idaho would almost surely lose.(259) As the Ninth Circuit emphasized recently, the Bureau's duties to conserve species and avoid jeopardy under the ESA effectively trump its obligations to deliver water to irrigators under the Reclamation Act.(260) Recent cases have affirmed that the Bureau must modify reservoir releases in order to avoid jeopardizing listed fish species, even when the result produces less water to irrigators under Bureau contracts.(261) Moreover, private irrigators could be held liable for a "take" under section 9 of the ESA if their water diversions harm the listed salmon.(262) Breaching the dams, on the other hand, could largely eliminate these threats to upper Snake interests by substantially reducing or eliminating the need for additional provision of water by the Bureau for salmon.(263)

B. Northwest Power Act Decision Making

Like the ESA, the Northwest Power Act, which directs the interstate Northwest Power Planning Council to develop a fish and wildlife restoration program for the Columbia Basin,(264) requires decision making based on "best available" science.(265) According to the Ninth Circuit, this requirement, along with another directive of the Northwest Power Act calling for improved salmon survival and river flows "necessary to meet sound biological objectives,"(266) demands a "high degree of deference" from the Council to the biological advice of federal and state fishery agencies and Indian tribes.(267)

Like the 1993 NMFS BiOp, the Council's 1991 amendments to its fish and wildlife program were also judged inadequate by the courts, and on remarkably similar grounds. The Ninth Circuit criticized the Council for taking

   only small steps ... in light of the entrenched river users' claims of
   economic hardship. Rather than asserting its role as regional leader, the
   Council has assumed the role of consensus builder, sometimes sacrificing
   the Act's fish and wildlife goals for what is, in essence, the lowest
   common denominator acceptable to power interests....(268)

Coupled with the earlier judicial call for a "major overhaul" of system operations,(269) the Ninth Circuit decision indicates that courts will be skeptical of Columbia Basin salmon restoration efforts that make only incremental changes, while salmon populations continue to plummet.(270)

C. Federal Power Act Relicensing and Section 7 Consultation

Upstream of the four lower Snake dams is the Idaho Power Company's three-dam Hells Canyon complex. These dams lack fishways for adult salmon, and thus block all fish access to the upper portion of the Snake Basin. Even if fish could get past these impediments (there have been unsuccessful attempts to trap and haul adults past the dams(271)), Brownlee Reservoir has drowned much of the former habitat of Snake River fall chinook. The dams also harm salmon downstream by altering the timing of Snake River flows and decreasing water quality.(272) Finally, Idaho Power has at times refused to pass water released from upstream Bureau of Reclamation dams for fish flows.(273)

The Hells Canyon complex is currently the subject of studies that will inform a decision by the Federal Energy Regulatory Commission (FERC) on whether to issue the project a new license under the Federal Power Act.(274) Three provisions of that statute are of particular concern for present purposes: 1) under section 4(e) of the Act, federal land managers may impose license conditions on projects within federal land reservations that they "deem necessary for the adequate protection and utilization" of the reservation;(275) 2) under section 18 of the Act, federal fishery agencies may prescribe "fishways" for licensed projects;(276) and 3) all FERC licensing decisions are subject to state water quality certification under section 401 of the Clean Water Act.(277)

The Hells Canyon project lies partly within U.S. Forest Service lands, which are "reservations" for the purpose of the Federal Power Act.(278) The Forest Service thus has section 4(e) conditioning authority over the project and could impose operating conditions to reduce the adverse effects the project's power operations have on downstream river reaches.(279) NMFS and the U.S. Fish and Wildlife Service may also impose section 18 fishway conditions, which FERC has defined as "a specific physical structure, facility, or device for fish passage and measures related to such structures."(280) The Hells Canyon project has blocked salmon migration to the middle Snake Basin since the middle 1960s, despite the licensee's assurances that a "trap and transport" program would preserve the runs.(281) Consequently, it would not seem unreasonable for the federal fishery agencies to exercise their conditioning authority to require the installation of upstream and downstream fish passage facilities to restore the salmon runs of the middle Snake Basin(282) Finally, state water quality standards for temperature in the lower Snake River below Hells Canyon have been routinely violated,(283) and the section 401 water quality certification process may demand increased river flows and a consequent reduction in power generation at the Hells Canyon project.(284)

All three of these license conditioning provisions authorize agencies other than FERC to make decisions that can affect the cost of relicensing a project like the Hells Canyon complex. Both court decisions and FERC administrative opinions confirm this.(285) Thus, not only FERC but also the U.S. Forest Service, NMFS, the U.S. Fish and Wildlife Service, and state water quality agencies, including those downstream in Oregon and Washington,(286) may have a substantial influence on the relicensing of Idaho Power's Hells Canyon dams. Indian tribes may also be able to affect FERC decision making by invoking the trust relationship between the federal government and the Indian tribes,(287) or by establishing their own water quality standards under the Clean Water Act's "tribes as states" provision.(288)

The Endangered Species Act (ESA) ultimately may play a role in the future of the Hells Canyon dams which overshadows that of the relicensing process. Incredibly, despite its dams' likely contributions to mortality of listed salmonids,(289) Idaho Power Company has never secured authorization under the ESA to "incidentally take" listed salmon and steelhead.(290) Section 9 of the ESA forbids taking of these fish, a term that encompasses both direct injury and mortality as well as significant habitat modification that kills or injures the fish.(291) The ESA contains both criminal and civil penalties for violation of these prohibitions,(292) and also allows any interested party to file suit to enjoin the actions of an alleged violator.(293) Because Idaho Power Company has never sought or received authority to incidentally take listed salmon and steelhead, the company currently has significant exposure to legal sanctions.

Similarly, FERC now faces a legal challenge for its alleged failure to comply with the ESA in regulating operations of the Hells Canyon complex. Section 7 of the ESA requires federal agencies to consult with NMFS whenever their actions "may affect" listed species. Both the U.S. Supreme Court and the Ninth Circuit have stressed that this duty applies to ongoing agency actions.(294) In November 1997, a coalition of environmental and fishing groups fried a petition with FERC asking the agency to initiate section 7 consultation with NMFS on FERC's existing license to Idaho Power for operation of the Hells Canyon dams, which they argued constitutes an ongoing agency action.(295) NMFS itself has also made two written requests to FERC to initiate consultation.(296) FERC has yet to issue a formal decision on the request; however, the petitioners have filed suit against FERC in the Ninth Circuit, arguing that the agency's inaction constitutes a denial, or that the court has authority to order FERC to act.(297) If the fish advocates succeed in forcing FERC to initiate section 7 consultation on FERC's license of the Hells Canyon dams, NMFS will be in a strong position to effectively prescribe inclusion of additional fishery protections in the existing license.(298)

The legal exposure of the Hells Canyon project provides another reason for making natural river drawdown the salmon restoration mechanism of choice for those concerned with minimizing impacts to Idaho economic interests. Breaching downstream dams would no doubt reduce pressure on Idaho Power and FERC to contribute to salmon recovery by significantly modifying operations of the Hells Canyon complex. Breaching would substantially reduce the costs Idaho Power Company may incur as a result of salmon protection measures and perhaps make the company a less likely target of legal action.

D. Clean Water Act Constraints

Water quality in and below the Snake River reservoirs remains exceedingly poor, particularly for temperature and dissolved nitrogen, both of which directly affect salmon survival. Salmon need water temperatures of about fifty-eight degrees Fahrenheit for optimum survival; water temperatures above this level impair juvenile migrants' smoltification (adaptation to salt water), delay adults' migration to spawning areas, and increase stress and mortality in both juveniles and adults.(299) The wide, slow reservoirs behind mainstem dams expose water to intense heating from the sun, sending water temperatures soaring. As a result, temperatures below these dams are, on average, considerably higher than these optimal biological ranges, sometimes spiking during summer periods well into lethal ranges for long periods of time.(300) Water going over the dams' spillways entrains nitrogen gas, increasing the rivers' levels of dissolved nitrogen, which can injure or kill salmon. In December 1997, the federal Environmental Protection Agency and the state water quality agencies in Oregon and Washington sent a joint letter to the Corps, operator of the lower Snake dams, pointing out these water quality concerns and requesting that the Corps respond with its plans to remedy these problems.(301) The Corps has yet to formally respond.

Failure to meet water quality standards is a Clean Water Act violation.(302) The Ninth Circuit has repeatedly held that citizens may require federal agencies to meet state water quality standards, even with respect to activities causing nonpoint source pollution, like dam operations.(303) These cases have relied on section 313 of the Clean Water Act, which requires every federal agency engaging in the discharge or runoff of pollutants to comply with state pollution control laws just as any other nongovernmental entity.(304) Thus, the Forest Service has been required to insure that its timber sales and road building must comply with state water quality standards.(305) The Corps's operation of its lower Snake dams would seem to be no different.

Washington's temperature standard for the Snake River is sixty-eight degrees Fahrenheit.(306) Washington and Oregon set the same standard for the Columbia River.(307) Both states have an antidegradation standard requiring that all waterbodies be maintained at levels protecting all existing uses, including salmon.(308) Both states list the lower Snake River as failing to meet their water quality standards for temperature.(309) This would seem to be a Clean Water Act violation, and in Oregon would require the implementation of measures that will "reverse the warming trend of the basin" and "protect beneficial uses."(310)

Like other options to restore salmon, there are two alternative methods to improve water quality in the mainstem Snake and Columbia Rivers. The Corps could make structural modifications to the dams, including spill deflectors or "flip-lips" and modified stilling basins, to decrease dissolved gas concentrations.(311) Although temperature problems are more difficult to address through retrofitting, flow augmentation helps to decrease water temperatures.(312) Alternatively, the Corps could breach the four lower Snake dams. This would eliminate both nitrogen-entraining spill and decrease solar heating by increasing river velocities and decreasing the surface area of water exposed to sunlight.

Water quality considerations could play a substantial role in the decision concerning the future of salmon recovery efforts due to economic factors alone. Retrofitting dams to prevent high levels of dissolved gas is enormously expensive, easily running to hundreds of millions of dollars.(313) These expenses would come on top of the substantial costs of retrofitting the dams with surface collection devices.(314) Additionally, as noted earlier, increased flow augmentation from the upper Snake also carries a substantial price tag for Idaho irrigators and Idaho Power.(315) On the other hand, breaching the dams would significantly increase both salmon survival and water quality with one capital investment.

E. Indian Treaty Fishing Rights

In 1855 and 1856, the federal government signed a series of treaties with Columbia Basin Indian tribes in which the tribes ceded to the government some sixty-four million acres of land in return for small land reservations and the "right of taking fish" at all their usual places in common with white settlers.(316) The latter promise, which has been the subject of numerous court interpretations, including at least seven from the U.S. Supreme Court,(317) allows the tribes to harvest roughly half of Columbia Basin salmon.(318) It also probably affords the tribes protection against activities that interfere with salmon production to the extent of depriving them of a "moderate living" from fishing,(319) although the scope of this right is unclear. It may very well be, however, that the tribes can successfully assert their treaty fishing rights to restrain fish-killing activities like the operation of Snake River dams.(320) Indian tribes may also be able to substantially affect FERC decision making by invoking the trust relationship between the federal government and the Indian tribes.(321)

The Indian treaties also reserve sufficient water for the tribes to carry out the purposes of their land and fishing reservations.(322) Because the reservations of Columbia Basin tribes include fishing rights as well as land,(323) the water rights of the tribes must include sufficient water to support a healthy, harvestable salmon fishery, one sufficient to support a tribal fishing economy.(324) Moreover, because Western water rights are based on temporal priority, and because the Columbia River treaty tribes possess aboriginal fishing rights, as confirmed in 1855 and 1856 treaties, their instream flow water rights carry a priority date of "time immemorial";(325) that is, they are prior and paramount to competing rights.(326)

In Idaho's Snake River Basin Adjudication, all water rights to the Snake River and its tributaries are being determined in a massive general stream adjudication covering eighty-seven percent of the state.(327) The Nez Perce Tribe, and the federal government on its behalf, has made substantial instream flow claims in support of the treaty fishing right.(328) These claims have created considerable uncertainty for virtually every water user in the state, especially agricultural users who irrigate with water stored in upper Snake River reservoirs.(329) It may be, however, that rather than insist on curtailing upstream diversions, the Nez Perce would consider agreeing to reduced quantities of flow augmentation water for fish migration, especially in the mainstem of the Snake River, in return for, among other things, breaching the lower Snake dams and lowering John Day Reservoir, measures that scientists believe offer the best opportunity to restore the Nez Perce's fishing economy.(330) Indian water right claims have generally been settled by federal legislation,(331) and a settlement that promises restored salmon runs for the tribe while protecting Idaho's irrigation community may serve the interests of all concerned.(332)

F. Pacific Salmon Treaty Conservation Obligations

Columbia River salmon, particularly chinook, are highly migratory. The vast majority of Columbia and Snake River chinook migrate north, meaning that once they adapt to ocean conditions and leave the Columbia estuary a considerable percentage eventually work their way up the coast into British Columbia and to Southeast Alaska, where they can be harvested. Likewise, Canadian-origin fish also leave British Columbia and quickly migrate into Southeast Alaskan fishing grounds. These migration patterns have led to decades of disputes between the United States and Canada over access to these extremely valuable fishing grounds.

To resolve these long-standing "fish wars," the United States and Canada agreed to the Pacific Salmon Treaty in 1985, which defined joint management and conservation responsibilities of the transboundary salmon resource.(333) Among other things, the treaty established the equitable principle that "each Party shall conduct its fisheries and its salmon enhancement programs so as to ... provide for each Party to receive benefits equivalent to the production of salmon originating in its waters."(334) One result of this understanding is that Canada looks southward to the United States to continue to produce northward-migrating Columbia River-origin salmon to replace, on a one-to-one basis, fish originating in Canadian waters that are harvested by Alaskans.

As Columbia River salmon runs have continued to decline, with many now listed under the Endangered Species Act (including all of Idaho's runs), there has been a growing biological inequity between the harvest opportunities of the two nations. In fact, precipitous Columbia River wild salmon declines, compounded by the very low survival rates of hatchery fish produced in the basin to mitigate for dam-related losses to wild stocks,(335) are major destabilizing factors contributing to the recent collapse of the Pacific Salmon Treaty as a viable process.

The treaty requires the United States to undertake a number of Columbia River salmon conservation measures and data collection programs. Conservation and enhancement of depleted salmon stocks were, in fact, two of the fundamental underpinnings of the treaty itself, and both are mentioned in its preamble.(336) The treaty also requires Canada and the United States to report plans for both current and future conservation measures to the Pacific Salmon Commission.(337) The treaty established a Joint Transboundary Technical Committee as an advisory committee to the Pacific Salmon Commission to consider transboundary river issues (including the Columbia) and, among other things, to "identify enhancement opportunities that ... have an impact on natural transboundary river salmon production."(338) Another important specific conservation provision committed the two countries to undertake studies "on the feasibility of new enhancement projects on the transboundary rivers ... as soon as possible."(339) Other portions of the treaty reflect concern for the long-term stability of continued salmon declines in the Columbia (particularly highly migratory chinook) and require the United States to take aggressive measures to halt and reverse these declines. For example, Annex IV requires both countries to establish a chinook salmon management program designed to restore naturally spawning chinook stocks.(340)

The United States has, however, consistently failed to meet its fundamental treaty obligation to halt and reverse wild salmon declines within the Columbia Basin and elsewhere, in large part because of the lack of the political will to address what is by far the single most important source of salmon mortality within the Columbia--the dams themselves.(341) Declines in the Columbia Basin not only help make the Pacific Salmon Treaty unworkable and severely constrain economic harvest opportunities throughout the Pacific Northwest, British Columbia, and Alaska,(342) but also contribute to serious and growing international friction with the Canadian government.

G. Retiring the Lower Snake Dams

Even if NMFS issues a BiOp calling for dam breaching and restoration of natural river flows, and even if the operating agencies decide to implement NMFS's recommendations, congressional approval would be required. First, Congress would have to fund breaching tile dams. Second, the lower Snake River dams were authorized for navigation, irrigation, and, secondarily, power purposes.(343) Breaching the dams would eliminate the navigation channel and the power produced by these dams. Therefore, Congress would have to approve retiring the dams and the navigation channel.

Congressional approval and funding are usually essential to Indian water rights settlements,(344) so in approving a settlement of the Nez Perce water right claims to the Snake River, Congress could also authorize breaching the dams.(345) While it might seem unlikely that Congress would enact such legislation, if the region's congressional delegation comes to realize that this approach is the best means to safeguard the irrigation economy of Idaho and eastern Oregon and Washington, as well as relicense Idaho Power's Hells Canyon dams, the chances of congressional action would increase substantially.

VI. CONCLUSION

In focusing solely on restoring Snake River salmon, we are not unmindful of the recent movement toward developing a framework for a multispecies, ecosystem-wide recovery plan.(346) In Return to the River, the Independent Science Group (ISG) emphasized the importance of prime mainstem spawning habitat for strong core populations capable of withstanding adverse environmental conditions and recolonizing more transient satellite tributary populations in less ideal habitat.(347) Therefore, any basin-wide salmon plan presumably would promote development, protection, and expansion of strong core populations in mainstem spawning areas that are linked with viable or potentially viable satellite populations in tributaries. Conceptually at least, this raises the question why we focus on a single tributary basin and listed salmon and steelhead (setting aside for the moment the ESA's mandate to recover these species). Are we inconsistent with, or at least "jumping the gun" on the development of a basin-wide framework? Is it premature to decide that the Snake Basin will be an important factor in any basin-wide restoration plan, either as mainstem core-population habitat or important, viable satellite population habitat in tributaries?

We don't think so. To be clear, we are heartened by the direction that the independent science reviews are pointing,(348) and we think that further scientific work in a basin-wide setting will come to the same conclusion regarding Snake River salmon populations that we do: Snake River populations are a key part of the Columbia River Basin ecosystem and must play an important part in any basin-wide recovery effort.(349) We come to this conclusion for several reasons. Today there are only two remaining reaches of free-flowing mainstem in the Columbia and Snake Rivers, the forty-mile stretch of the Columbia known as the Hanford Reach and an eighty-mile segment of the lower Snake between Hells Canyon Dam and Asotin, Washington. The Hanford Reach supports a healthy population of fall chinook that has been stable for a number of years and may be functioning as the basin's only core population.(350) The Snake River below Hells Canyon supports a small, unstable population of fall chinook remnant of what in 1957 to 1960 was the largest mainstem spawning population of fall chinook in the Columbia Basin, with an average return of 41,000 fish.(351) Passage to most of the mainstem Snake habitat for fall chinook, however, was blocked in the 1960s by the Hells Canyon dams. In the same 1957 to 1960 period, the area now inundated by John Day Reservoir supported 34,000 fish, then the basin's second largest population.(352)

In Return to the River, ISG looked closely at protection and enhancement of the only stable mainstem-spawning population in the Columbia Basin, the Hanford Reach. ISG concluded that reservoir draw downs at McNary and John Day Dams would likely restore sufficient mainstem spawning habitat to strengthen and protect the Hanford Reach population, ensuring its role as a core population that "might serve as a source for colonization of adjacent habitats if normative conditions were restored in those habitats."(353) ISG did not, however, closely examine the potential viability of the lower Snake River as mainstem spawning habitat in the absence of the four lower Snake dams. While it is true that historically the lower Snake did not provide significant mainstem spawning habitat, the same is apparently true of the Hanford Reach. Historically, the Hanford Reach was not a significant mainstem spawning area, but as the productive mainstem spawning areas were successively destroyed by reservoir flooding and other human activity, salmon began to increasingly make use of the Hanford Reach of the Columbia, which was protected from development as part of the Hanford nuclear reservation.(354) Today, the 40-mile long Hanford Reach supports the only population above Bonneville dam capable of functioning as a core population.(355)

In the absence of the four lower Snake dams, would fall chinook salmon spawn in what would be a 220-mile free-flowing stretch of the river between Hells Canyon Dam and the Snake's confluence with the Columbia? It seems quite likely that they would. For example, in 1998 fishery officials reported that upriver bright fall chinook, which historically spawned in the upper basin, were spawning in great numbers (3000 to 5000 spawners) in shallow pools below Bonneville Dam because they found suitable habitat there.(356) We think that scenario will be replicated many times over in a free-flowing lower Snake River, which would be more than five times the size of the Hanford Reach.

Even if it were ultimately determined that the lower Snake would provide little in the way of viable mainstem habitat, it still serves as the gateway to Idaho's Salmon and Clearwater River Basins. Historically, the Salmon Basin alone produced thirty-nine to forty-five percent of the spring/summer chinook salmon in the Columbia Basin.(357) It seems highly unlikely that any basin-wide recovery plan could ignore the potential of the largest remaining area of salmon habitat in the Pacific Northwest, an area comprised largely of national forests and wilderness areas. We have documented the importance of Snake River salmon under the Endangered Species Act, to the genetic and life-history diversity of the salmon runs throughout the basin, to fishers in the state of Idaho, and to the Nez Perce Tribe. Snake River salmon must be a focal point of any salmon recovery effort if the region is to restore its once bountiful salmon fishery.

Rescuing Snake River salmon from the edge of extinction is now one of the foremost issues on the nation's environmental agenda. The existing method of preserving the salmon runs, a barging and trucking program transporting juvenile salmon around the dams, has, over the course of two decades, failed to stem the decline of the species.(358) The emerging scientific consensus is that the best means of recovering Snake River salmon is to breach the four lower Snake dams and lower the John Day Reservoir to restore natural river flows and produce salmon spawning habitat.(359) Economic analyses show that this option will produce net social benefits and is affordable under the most likely electricity price forecasts.(360) Breaching the dams would produce only modest electric rate increases and would sacrifice nothing in flood control.(361) River navigation on the lower Snake, one of the most highly subsidized means of transportation in the country,(362) can be replaced by cheaper rail and truck alternatives.(363) Indeed, the legislation authorizing restoration of natural river flows on the lower Snake should also provide mitigation to affected river transport interests in the form of improvements to regional rail and truck transportation infrastructures. Similar sorts of economic mitigation are commonplace in Indian water rights settlements.(364)

The law also points in the direction of breaching the lower Snake dams and lowering John Day Reservoir. Both the ESA and the Northwest Power Act demand decision making based on best available science,(365) such as the studies discussed in Part III of this Article. Moreover, the policy of the ESA is to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved."(366) It is now clear that the current barge and truck transportation program does not offer a long-term solution and does nothing to protect the salmon ecosystem. Further, the statute predicates the issuance of the take permit authorizing the transportation program upon a finding that such action 1) will not operate to the disadvantage of listed salmon and steelhead, and 2) is consistent with the ESA's purpose of ecosystem conservation.(367) Because the transportation program is the key mitigation measure employed by NMFS to justify allowing current dam operations to harvest up to eighty-six percent of juvenile sockeye and spring/summer chinook salmon and up to ninety-nine percent of fall chinook,(368) it is hard to see how the transportation take permit satisfies these standards.(369) The Northwest Power Act not only requires best available science as a basis for decision malting but also requires river flows necessary to meet "sound biological objectives,"(370) favors biological outcomes over economic ones,(371) and demands deference to the biological judgment of the region's fishery agencies and Indian tribes.(372) All of these provisions point toward a fish restoration plan that keeps the salmon in the river and out of trucks and barges.

Among the largest legal threats to the current status quo in Idaho is the potential demand for water to restore Snake River salmon runs, either to satisfy the ESA, the Clean Water Act, or the Nez Perce Tribe's reserved water rights to the Snake River.(373) Because these claims are quite large, they could jeopardize the water rights of numerous upstream diverters. Indeed, one analysis estimated that some 400,000 acres of irrigated agriculture in Idaho could lose water under one flow augmentation plan.(374) Settling these claims through enactment of federal legislation authorizing breaching the lower Snake River dams and lowering John Day Reservoir offers the best chance of restoring the fishing economy of both the Nez Perce Tribe and the state of Idaho, while preserving irrigation economies of Idaho and eastern Oregon and Washington. This settlement legislation could also remove obstacles to the ongoing operations as well as relicensing of Idaho Power's Hells Canyon dams.(375) In addition, an investment in effective salmon restoration will mean the revitalization of Idaho's fishing-based tourism and other related industries, which could contribute at least another $150 million per year to the economy of that state.(376) When regional and national politicians begin to understand that reality, they may endorse the science and economics that point toward breaching the lower Snake dams and lowering John Day Reservoir as the only viable salmon restoration plan for the Snake River in the twenty-first century.

(1) See generally Christopher A. Frissell, Topology of Extinction and Endangerment of Native Fishes in the Pacific Northwest and California (U.S.A.), 7 CONSERVATION BIOLOGY 342 (1993) (examining the trends of species endangerment supports prior conclusions of wide spread extinction and "impoverishment of the North American ichthyofuana appear[ing] to be a part of a world-wide phenomenon"); Mary Christina Wood, Reclaiming the Natural Rivers: The Endangered Species Act as Applied to Endangered River Ecosystems, 40 ARIZ. L. REV. 197, 211-213 (1998) (referring to rivers that are physically altered for agriculture, industrial, and municipal use as endangered, with these uses "push[ing] the dominant fish species in each basin to the brink of extinction"); 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, 68 (1995) ("In the Pacific Northwest, native diversity loss and habitat degradation are some of the most significant in the world."); THE NORTHWEST SALMON CRISIS: A DOCUMENTARY HISTORY (Joseph Cone & Sandy Ridlington eds., 1996).

(2) The Salmon River, the Snake's principal tributary, historically produced 39-45% of the spring/summer chinook salmon of the entire Columbia Basin. THE INDEPENDENT SCIENTIFIC GROUP, RETURN TO THE RIVER: RESTORATION OF SALMONID FISHES IN THE COLUMBIA RIVER ECOSYSTEM 90 (1996) [hereinafter RETURN TO THE RIVER]; see also U.S. FISH COMM'N, BULLETIN OF THE UNITED STATES FISH COMMISSION, VOL. XV FOR 1895 (1896) (early report on the abundance of salmon in the Snake Basin); Peter F. Hassemer et al., Idaho's Salmon: Can We Count Every Last One?, in PACIFIC SALMON & THEIR ECOSYSTEMS 113 (Deanna J. Strouder et al. eds., 1996).

(3) Michael C. Blumm, Saving Idaho's Salmon: A History of Failure and a Dubious Future, 28 IDAHO L. REV. 667, 672-73 (1992) [hereinafter Saving Idaho's Salmon]. Further, the privately owned Hells Canyon complex, a series of three mainstem Snake dams on the Oregon/Idaho border, completely blocks salmon access to the upper portion of the basin. Id. at 673-75; see text accompanying infra note 281.

(4) For example, the decline of Snake River sockeye is due to a number of factors, including water diversion and storage, predation, commercial fisheries, persistent drought, and the general inadequacy of protective regulatory mechanisms. Endangered Status for Snake River Sockeye, 56 Fed. Reg. 58,619, 58,622-23 (Nov. 20, 1991). Indeed, the National Marine Fisheries Service (NMFS) has documented numerous causes for the decline of other Snake River salmonid species listed under the ESA. See, e.g., Threatened Status for Snake River Spring/ Summer Chinook Salmon, Threatened Status for Snake River Fall Chinook Salmon, 57 Fed. Reg. 14,653, 14,660-61 (Apr. 22, 1992); Listing of Several Evolutionary Significant Units (ESUs) of West Coast Steelhead, 62 Fed. Reg. 43,937, 43,941-44 (Aug. 18, 1997) (listing Snake River steelhead as threatened); Proposed Endangered Status for Two Chinook Salmon ESUs; Proposed Redefinition, Threatened Status and Revision of Critical Habitat for One Chinook Salmon ESU; Proposed Designation of Chinook Salmon Critical Habitat in California, Oregon, Washington, Idaho, 63 Fed. Reg. 11,482, 11,497-01 (Mar. 9, 1998) (providing additional discussion of the cause of Snake River spring/summer chinook and fall chinook declines); Determination of Threatened Status for the Klamath River and Columbia River Distinct Population Segments of Bull Trout, 63 Fed. Reg. 31,647, 31,656-71 (June 10, 1998) (providing a detailed discussion of factors causing the decline of bull trout, including factors not yet mentioned like forest management practices, livestock grazing, agricultural practices, road construction and maintenance, mining, residential development, introduction of normative species, and habitat fragmentation). Further, the decline in the number of individuals in a population itself can contribute to the further decline of a species through genetic and demographic risks inherent in small populations. See Status of Snake River Spring/Summer Chinook Salmon and Snake River Fall Chinook Salmon, 59 Fed. Reg. 42,529, 42,530 (Aug. 18, 1994) (citing the detrimental effects of small population size as one reason for downgrading Snake River spring/summer chinook and fall chinook to endangered status from threatened status in an emergency interim rule).

(5) See 56 Fed. Reg. at 58,622 (sockeye); 57 Fed. Reg. at 14,660 (spring/summer chinook and fall chinook); 59 Fed. Reg. at 42,530 (spring/summer chinook and fall chinook); 62 Fed. Reg. at 43,941-42 (steelhead); 63 Fed. Reg. at 31,657 (bull trout). (6) See infra notes 61-69, 252-63 and accompanying text.

(7) See infra Part III.

(8) 56 Fed. Reg. at 58,619 (listing Snake River sockeye as endangered); 57 Fed. Reg. at 14,653 (listing Snake River spring/summer chinook and fall chinook as threatened); 59 Fed. Reg. at 42,529 (listing of spring/summer chinook and fall chinook as endangered in emergency interim rule); Status of Snake River Spring/Summer Chinook Salmon and Snake River Fall Chinook Salmon, 59 Fed. Reg. 66,784 (Dec. 28, 1994) (proposed permanent listing of spring/summer chinook and fall chinook as endangered); 62 Fed. Reg. at 43,937 (listing steelhead as threatened); Withdrawal of Proposed Rule to List Snake River Spring/Summer Chinook Salmon and Fall Chinook Salmon as Endangered, 63 Fed. Reg. 1807 (Jan. 12, 1998); 63 Fed. Reg. at 11,482 (proposing endangered and threatened status for different chinook evolutionarily significant units); 63 Fed. Reg. at 31,657 (listing distinct population segments of bull trout as threatened). We include steelhead trout in our references to salmon. Unlike Pacific salmon, steelhead can survive spawning. R.J. CHILDERHOSE & MARJ TRIM, PACIFIC SALMON 22 (1979).

(9) 16 U.S.C. [sections] 839 (1994). See NORTHWEST POWER PLANNING COUNCIL, AMENDMENTS TO THE COLUMBIA RIVER BASIN FISH AND WILDLIFE PROGRAM (PHASE Two) 1-2 (1991) [hereinafter 1991 AMENDMENTS] (explaining that prior to 1991 the Northwest had a history of considering salmon issues through various forums, including the Salmon Summit convened in 1990 by the region's governors and Senator Mark Hatfield, that eventually led to the Northwest Power Planning Council's regional salmon plan).

(10) An estimated $3 billion has been spent by regional rate payers and federal taxpayers on Columbia River salmon recovery over the past twenty years. Jim Yuskavitch, Breaching, Drawdowns, and the Art of Salmon Recovery, TROUT, Summer 1998, at 12, 18 (noting that conservationists dispute the $3 billion figure because it includes the cost of forgone hydropower revenues); see also Michael C. Blumm et al., Beyond the Parity Promise: Struggling to Save Columbia Basin Salmon in the Mid-1990s, 27 ENVTL. L. 21, 103-04 (1997) [hereinafter Beyond Parity] (discussing why the "forgone hydropower revenue" concept is controversial).

Under a 1996 Memorandum of Agreement (MOA) between the Bonneville Power Administration (BPA), the Northwest Power Planning Council, and NMFS, BPA expenditures on fish and wildlife measures is limited to an average of $252 million annually through 2001, plus whatever foregone revenues it incurred due to operating the federal hydroelectric system to satisfy the requirements of the NMFS Biological Opinion on project operations. The latter was originally estimated to cost $183 million per year. See id. at 103-07 (discussing the motivation for and details of the MOA). According to BPA, it actually spent $177.7 million on fish and wildlife measures in 1996 and $194.8 million in 1997. Foregone hydropower revenues each year were estimated at $102 million, roughly the same as the cost of irrigation withdrawals. Bonneville Power Admin., BPA White Paper: What is BPA Spending For Fish and Wildlife? (visited Dec. 12, 1998) <http://www.efw.bpa.gov/Environment/EW/FISCAL/ 980318.hmoore.html>. So while annual costs of fish and wildlife measures under the MOA were estimated to be $435 million, during its first two years, costs were actually about $280 million in 1996 and $297 million in 1997, about two-thirds of the estimate.

(11) Council Chairman Ted Hallock explained, "the [Council's 1991 amendments do not] do enough, but considering all the interest groups involved, it was the best plan that could be expected." Saving Idaho's Salmon, supra note 3, at 689 n. 128. For analysis of the 1991 amendments, see id. at 690-96.

(12) After the listings in 1991, NMFS essentially relied on the 1991 amendments to the Council's fish and wildlife program, supra note 9 and accompanying text, to conclude that proposed 1992 hydroelectric operations would not jeopardize listed species. The next year when NMFS did essentially the same thing, the states of Idaho and Oregon and environmentalists filed suit. See infra notes 230-37 and accompanying text for a discussion of this litigation. When an Oregon district court ruled against the agency, NMFS reconsidered federal hydroelectric operations pursuant to [sections] 7 of the Endangered Species Act. 16 U.S.C. [sections] 1536(a)(2) (1994). The agency this time concluded that status quo hydroelectric operations violated the ESA, and prescribed a series of operational and system configuration changes to benefit listed salmon. This document, known as a biological opinion, was adopted by the dam operating agencies and continues to the present to govern Federal Columbia River Hydropower System management. 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 (1995) [hereinafter BIOP]. See a/so Michael C. Blumm, The Amphibious Salmon: The Evolution of Ecosystem Management in the Columbia Basin, 24 ECOLOGY L.Q. 653, 664-67 (1997).

(13) This characterization of the ESA likely stems from the Supreme Court's language in Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978) ("The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost."). See Davina Kari Kaile, Evolution of Wildlife Legislation in the United States: An Analysis of the Legal Efforts to Protect Endangered Species and the Prospects for the Future, 5 GEO. INT'L ENVTL. L. REV. 441, 456-59 (1993) (describing the effect of strict Supreme Court and lower court interpretations of the ESA); John W. Steiger, The Consultation Provision of Section 7(a)(2) of the Endangered Species Act and its Application to Delegable Federal Programs, 21 ECOLOGY L.Q. 243, 266-73 (1994) (concluding that both the language and legislative history of the ESA support the Supreme Court's expansive, reading of 7 in Tennessee Valley Authority v. Hill); Sharon K. Shutler & Elinor Colbourn, Natural Resource Restoration: The Interface Between the Endangered Species Act and CERCLA's Natural Resource Damage Provisions, 24 ENVTL. L. 717, 719-22 (1994) (discussing Tennessee Valley Authority v. Hill); Stephen M. Meyer, The Economic Impact of the Endangered Species Act on the Housing and Real Estate Markets, 6 N.Y.U. ENVTL. L.J. 450 (1998) (asserting that the ESA, despite its clear favoritism toward endangered species, has had no empirically measurable economic effect on the real estate and timber industries). A thorough review of the ESA's implementation indicates that politics have played a large role affecting decision making under the statute. See Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. COLO. L. REV. 277 (1993); Wood, supra note 1, at 242-45.

(14) BIOP, supra note 12, at 72.

(15) Id. at 81

   Without major modifications to the Snake and Columbia River dams, it is
   unlikely survivals can be sufficiently improved to ensure that the
   operation of the Federal Columbia River Power System does not impede the
   survival and recovery of listed Snake River salmon. The recovery plan team
   was responsible for identifying three alternative scenarios for major
   structural modifications to the dams: spillway crest drawdown, natural
   river drawdown, and surface collectors.

Id.

(16) RETURN TO THE RIVER, supra note 2, at 328; discussed infra notes 113-23 and accompanying text. See also PHILLIP R. MUNDY ET AL., TRANSPORTATION OF JUVENILE SALMONIDS FROM HYDROELECTRIC PROJECTS IN THE COLUMBIA RIVER BASIN' AN INDEPENDENT PEER REVIEW, FINAL RETORT (1994) (questioning the transportation program's efficacy and indicating that it may in many instances be doing more harm than good); discussed infra notes 89-96 and accompanying text. The juvenile collection and transportation program has never undergone analysis under National Environmental Policy Act (NEPA) procedures. The program, originally intended to be merely experimental, was begun two years before NEPA became law, and NMFS has apparently considered the program exempt from NEPA analysis.

(17) Save Our Wild Salmon Coalition, Five Years of Failure: A Critique of the Clinton Administration's Plan for Columbia and Snake River Salmon, in COMPETING FOR THE MIGHTY COLUMBIA RIVER--PAST, PRESENT, AND FUTURE: THE ROLE OF INTERSTATE ALLOCATION (Apr. 30-May 1, 1998) [hereinafter COMPETING FOR THE COLUMBIA] (course materials for an ABA Section of Natural Resources, Energy, and Environmental Law conference in Boise, ID).

(18) BIOP, supra note 12, at 92-94.

(19) In 1991, former Idaho Governor Cecil Andrus first suggested drawing down the four reservoirs behind Corps of Engineers dams on the lower Snake River during the spring downstream migration season to improve juvenile salmon survival. Michael C. Blumm & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 ENVTL. L. 657, 725-26 (1991). This seasonal drawdown would have effectively required the dams to be operated to facilitate salmon migration during the spring of each year and for power production and navigation during the rest of the year. The Northwest Power Planning Council included a two-reservoir test of seasonal drawdowns in its 1994 amendments to its Columbia Basin Fish and Wildlife Program. NORTHWEST POWER PLANNING COUNCIL, COLUMBIA RIVER BASIN FISH AND WILDLIFE PROGRAM 5-25 to 5-32 (1994) [hereinafter 1994 AMENDED PROGRAM]; see also Beyond Parity, supra note 10, at 54-57 (discussing reservoir drawdowns as a means to achieving natural river flows). The amendments called for a drawdown of Lower Granite Reservoir beginning in the spring of 1995, and a drawdown of Little Goose Reservoir beginning in the spring of 1999. 1994 AMENDED PROGRAM, supra, at 5-26 to 5-27. Under the experiment, these drawdowns would continue until 2002, when the Council would decide whether to drop the experiment or expand it to all four lower Snake Reservoirs. Id. at 5-27. However, because NMFS declined to include seasonal drawdowns in its biological opinions, the Council experiment was never implemented. See Beyond Parity, supra note 10, at 97-98 (describing NMFS's approach to "limited drawdowns," which in any event were not provided during 1995); see also Save Our Wild Salmon Coalition, supra note 17, at 7 ("The Administration has failed to lower John Day Reservoir to minimum operating pool, or even to begin construction work needed to lower the reservoir in future years."). Since 1994, numerous scientific and economic questions concerning the efficacy of seasonal drawdowns, as well as political changes--notably, Governor Andrus' retirement--led decision makers to drop serious consideration of this alternative (see infra notes 159-60 and accompanying text) in favor of analyzing permanent reservoir drawdowns, including breaching the four lower Snake River dams to restore year-round natural river flows.

(20) WY-KAN-USH-MI WA-KISH-WIT (SPIRIT OF THE SALMON), THE COLUMBIA RIVER ANADROMOUS FISH RESTORATION PLAN OF THE NEZ PERCE, UMATILLA, WARM SPRINGS AND YAKAMA TRIBES

(21) (1995) [hereinafter TRIBAL PLAN].21 Id. at 5B-30 to 5B-31; see infra note 109 and accompanying text.

(22) RETURN TO THE RIVER, supra note 2, at xvii-xviii ("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: 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). See also infra note 113.

(23) RETURN TO THE RIVER, supra note 2, at 268-69, 513. The proposed lowering of the John Day Reservoir generated substantial controversy. See infra note 119, which also discusses an ongoing study of the U.S. Army Corps of Engineers that will evaluate the costs and benefits of drawing down John Day Reservoir to spillway crest or to natural river. A spillway crest drawdown would restore about 35 of the 77 reservoir miles for salmon spawning and would preserve navigation, flood control, and about half the hydropower the dam produces. A natural river drawdown would more than double the restored spawning habitat but would cost the navigation, flood control, and power benefits. Pending more information on the biological benefits and economic costs of these two alternatives, which the Corps study will produce, we take no position on these alternatives.

(24) RETURN TO THE RIVER, supra note 2, at 269.

(25) See, e.g., Sen. Larry Craig, Editorial, Breaching Dams on Lower Snake River Would Be Hugely Irresponsible, IDAHO STATESMAN, Sept. 30, 1997, at A6 (claiming erroneously that the lower Snake dams provide important irrigation and flood control benefits); Editorial, Breaching Lower Snake Dams Means Better Economy, Less Government, IDAHO STATESMAN, Sept. 30, 1997, at A1 (correcting Sen. Craig's errors); Bill Loftus, Chenoweth Lauds Chambers Dam Breaching Fight, LEWISTON MORNING TRIBS., July 4, 1998, at 6A (quoting Rep. Helen Chenoweth claiming that "the problems facing the fish can be fixed with changes to the dams, more efforts to control predators ranging from squawfish to sea lions, and controlling foreign fishing').

(26) Department of the Interior and Related Agencies Appropriations Act of 1999, S. 2237, 105th Cong. tit. IV [sections] 343 (1998); John Hughes, Gorton Takes Steps to Parry Babbitt on Dam Removal, OREGONIAN, Aug. 2, 1998, at D13; Jim Barnett & Dave Hogan, Gorton Plan Angers NW Rivers Advocates, OREGONIAN, July 19, 1998, at C1. Senator Gorton subsequently dropped his rider after the White House threatened a veto, although he also withdrew language that would have provided $22 million to accelerate the removal of the Elwah Dam on the Olympic Peninsula. Barry Espenson, Gorton Pulls Dam Language, Elwah Cash, COLUMBIA BASIN BULL., (Oct. 16, 1998) <http://www.nwppc.org/bull_18.htm>.

(27) Saving Idaho's Salmon, supra note 3, at 672-73; see also KEITH C. PETERSON, RIVER OF LIFE, CHANNEL or DEATH 119-22 (1995) (noting that funds for construction of the Snake River dams were not appropriated until proponents convinced Congress that the power the projects would produce was needed for critical national defense projects in atomic energy at the Hanford Reservation and for aluminum production).

(28) See infra notes 155-57 and accompanying text.

(29) See infra Part IV, especially infra notes 166-70.

(30) See infra Part V.

(31) Fish restoration requires increasing the velocity of water flows throughout the basin to the estuary. RETURN TO THE RIVER, supra note 2, at 195. Increased velocities may translate into decreased smolt migration times that the salmon runs experienced before the dams were built. Id. at 220. The long migration times through the existing slackwater reservoirs subject juvenile salmon to increased stress, predation, and high mortality. Id. at 194. Hydrologically, there are only two ways to increase the velocity of water flowing through the Columbia Basin: 1) by increasing total flows (by drafting water stored upriver), or 2) by decreasing the total cross-sectional area the same amount of water has to flow through (by shrinking or eliminating the reservoirs impounded by the dams). Id. at 268.

(32) Breaching a dam would involve a slow lowering of reservoir levels to prevent erosion, removing the earthen embankment, and leaving the concrete locks and powerhouses in a sort of drydock state. Engineers claim that breaching a dam would be considerably simpler than building one. Breaching all four lower Snake dams likely would take four to seven years, including time for engineering studies. Bill Loftus, How To Breach A Dam, LEWISTON MORNING TRIB., June 7, 1998, at 1D.

(33) On the John Day drawdown, see supra note 23 and infra note 119.

(34) IDAHO DEP'T OF FISH & GAME, REPORT TO THE DIRECTOR, IDAHO'S ANADROMOUS FISH STOCKS: THEIR STATUS AND RECOVERY OPTIONS 16 (1998) [hereinafter IDF&G].

(35) See infra Part V.E.

(36) See infra Part V.A.

(37) IDF&G, supra note 34, at 5; NATIONAL MARINE FISHERIES SERV., PROPOSED RECOVERY PLAN FOR SNAKE RIVER SALMON II-13 to II-15 (1995) [hereinafter RECOVERY PLAN]; NATIONAL RESEARCH COUNCIL, UPSTREAM: SALMON AND SOCIETY IN THE PACIFIC NORTHWEST 2-3, 91-95 (1996) [hereinafter UPSTREAM]. For Federal Register discussions of decline of the various Snake River salmon species, see supra note 4.

(38) IDF&G, supra note 34, at 5.

(39) In 1976, Over 500 sockeye were counted at Lower Granite Dam, the farthest upstream of the four Lower Snake Dams, but in 1985 only 12 reached their spawning grounds in Redfish Lake. The numbers have remained low ever since; only one sockeye reached the lake in 1989, none in 1990, and four in 1991, when NMFS proposed listing sockeye as endangered. The returnees are now the subject of a captive breeding program. Endangered Status for Snake River Sockeye, 56 Fed. Reg. 58,619, 58,622 (Nov. 20, 1991) (proposed listing).

(40) Threatened Status for Snake River Spring/Summer Chinook Salmon, Threatened Status for Snake River Fall Chinook Salmon, 57 Fed. Reg. 14,653, 14,660-61 (Apr. 22, 1992); Listing of Several Evolutionary Significant Units (ESUs) of West Coast Steelhead, 62 Fed. Reg. 43,937, 43,941-44 (Aug. 18, 1997). 41 57 Fed. Reg. at 14,659.

(42) UPSTREAM, supra note 37, at 92 fig.4-4. Interestingly, NMFS has set its sights rather low for Snake River fall chinook recovery. Critical habitat for fall chinook presently includes only the mainstem Snake River below Hells Canyon Dam, the downstream dam in Idaho Power's Hells Canyon Complex, and the lower reaches of some larger tributaries such as the Clearwater and Grande Ronde Rivers, not the prime spawning grounds that used to exist above the Hells Canyon complex. Designated Critical Habitat; Snake River Sockeye Salmon, Snake River Spring/Summer Chinook Salmon, and Snake River Fall Chinook Salmon, 58 Fed. Reg. 68,543, 68,546 (Dec. 28, 1993). Moreover, NMFS's numerical criteria for delisting fall chinook--an eight-year mean of 2500 annual natural spawners--is based only on spawning capacity in the mainstem from Hells Canyon Dam downstream to Lower Granite Dam. RECOVERY PLAN, supra note 37, at IV-19. Because of this limited geographic scope, the recovery numbers are well below the maximum sustainable production the Snake River could support with either the removal of the four lower Snake River dams, or renewed accessibility and restored habitat above the Hells Canyon Project.

(43) 57 Fed. Reg. at 14,659.

(44) Status of Snake River Spring/Summer Chinook Salmon and Snake River Fall Chinook Salmon, 59 Fed. Reg. 42,529, 42,530 (Aug. 18, 1994). NMFS later withdrew its proposal to list chinook as endangered. Withdrawal of Proposed Rule to List Snake River Spring/Summer Chinook Salmon and Fall Chinook Salmon as Endangered, 63 Fed. Reg. 1807 (Jan. 12, 1998).

(45) 62 Fed. Reg. at 43,950.

(46) IDF&G, supra note 34, at 5.

(47) For example, sockeye passage counts at Ice Harbor Dam have been less than 100 fish for most years in the past two decades, with only one fish counted in 1992. UPSTREAM, supra note 37, at 91 fig. 4-3. Fall chinook counts at Lower Granite and Ice Harbor dams have dropped precipitously since the late 1950s, with recent counts averaging less than 900 fish. For historical as well as current fish passage rates at all of the dams along the Columbia and Snake Rivers, see the Fish Passage Center world wide web site at <http://www.fpc.org/>.

(48) RETURN TO THE RIVER, supra note 2, at xvi; UPSTREAM, supra note 37, at 60. The Fish Passage Center, supra note 47, noted that Snake River salmon maintained themselves during 1958-68, but after construction of the lower Snake (dams and John Day, they were no longer sustainable. See STATE OF IDAHO, OFFICE OF THE GOVERNOR, ENDANGERED SNAKE RIVER SPRING & SUMMER CHINOOK SALMON--CAUSES AND EFFECTS 6 (1994) [hereinafter IDAHO CHINOOK REPORT] (quoting M. DeHart, Recovery Team Discussions of Adequate Migration Conditions, Memorandum to the Fish Passage Advisory Committee (1992)). Early on in the dam-building debate, a Corps of Engineers report to Congress expressed concern over the effect of the dams on salmon runs. H.R. Doc. No. 75-704, at 25 (2d Sess. 1938). Recognizing the detrimental impact of the dams on salmon runs, the Corps's Division Engineer recommended "[a]dequate provision should be made at all dams for passage of fish." Id. at 13.

(49) IDAHO CHINOOK REPORT, supra note 48, at 5 (citing H.L. Raymond, Effects of Hydroelectric Development and Fisheries Enhancement on Spring and Summer Chinook in the Columbia River Basin, 8 N. AM. J. FISHERIES MGMT. 1, 25 (1998)). 50 See infra notes 60, 143 and accompanying text.

(51) INSTITUTE FOR FISHERIES RESOURCES, THE COST OF DOING NOTHING: THE ECONOMIC BURDEN OF SALMON DECLINES IN THE COLUMBIA RIVES BASIN 2 (1996) [hereinafter THE COST or DOING NOTHING].

(52) RETURN TO THE RIVER, supra note 2, at 325-39; UPSTREAM, supra note 37, at 240-41.

(53) BIOP, supra note 12, at 94.

(54) IDF&G, supra note 34, at 12.

(55) Save Our Wild Salmon Coalition, supra note 17, at 8.

(56) See, e.g., John G. Williams, Transportation of Juvenile Fish as a Method to Increase Adult Returns of Spring/Summer Chinook Salmon and Steelhead to the Snake River Basin, in COMPETING FOR THE COLUMBIA, supra note 17.

(57) RETURN TO THE RIVER, supra note 2, at 301-02.

(58) IDF&G, supra note 34, at 13. Juvenile salmon are subject to physiological stress through collection and crowding within the barges. Removal from the river also may impair their remarkable capability to return to their natal streams as adults to spawn. Additionally, disease transmission occurs with greater frequency in the barges' confined conditions, particularly between disease-prone hatchery fish and wild fish. These factors increase the likelihood of mortality among juveniles or straying from spawning grounds among adults.

(59) Surface Bypass and Collection System Options For Lower Snake River Dams, 2 IDF&G, supra note 34, app.3.8, at 77.

(60) See Bill Crampton, Smolt Transport Study Shows Low Adult Returns, COLUMBIA BASIN BULL., (July 24, 1998) <http://www.nwppc.org/bull_07.htm#1> (noting that some scientists believe that these results indicate "transportation is a failure as a recovery strategy," because smolt-to-adult return rates for Snake River salmon have never been above one percent since 1988. "These scientists suggest that transported fish suffer a `delayed mortality' due to stress and disruption of the life cycle.").

(61) BIOP, supra note 12, at 99. For a discussion of this requirement and some of the difficulties in implementing it, see JOHN M. VOLKMAN, A RIVER IN COMMON: THE COLUMBIA RIVER, THE SALMON ECOSYSTEM AND WATER POLICY IV-50 to IV-55 (1997).

(62) See Karl J. Dreher, A View on Idaho's Experience with Flow Augmentation 15, in COMPETING FOR THE COLUMBIA, supra note 17 (concluding flow augmentation can provide only small incremental increases in average river velocity and should be limited to dry years).

(63) Clearwater County, the city of Orofino, and several private entities and individuals unsuccessfully challenged the drawdowns of Dworshak Reservoir as unauthorized by Congress and in violation of NEPA. Clearwater County v. U.S. Army Corps of Engineers, No. CV 94-0330-N-EJL (D. Idaho, 1995) aff'd mem., 1998 WL 152741 (9th Cir. Apr. 2, 1998). The Idaho legislature amended its Water Code in 1990 to require applications for out-of-state uses of water to show, inter alia, consideration of the "local public interest" and "reasonably anticipated" water demands and shortages. IDAHO CODE [subsections] 42-401 to 42407, 42-203A(5) (1996). Concerns have been raised about whether the amendments might; be a Commerce Clause violation. Saving Idaho's Salmon, supra note 3, at 690 n. 133, 709.

(64) 1994 AMENDED PROGRAM, supra note 19, at 5-21.

(65) BOOKMAN-EDMONSTON ENGINEERING, INC., REPORT OF THE SNAKE RIVER BASIN WATER COMMITTEE No. 94-39, WATER MANAGEMENT OPPORTUNITIES WITHIN THE SNAKE RIVER BASIN, OREGON AND IDAHO 2 (1994) [hereinafter BOOKMAN-EDMONSTON].

(66) See Beyond Parity, supra note 10, at 71, 93-94 (NMFS's reference to Council's additional one million acre-feet as "unrealistic"); see also Save Our Wild Salmon Coalition, supra note 17, at 5 ("[N]o efforts to obtain this additional water for use in the year 2000 are underway."). Because the Bureau of Reclamation (Bureau) must comply with state laws under [sections] 8 of the Reclamation Act of 1902, 43 U.S.C. [subsections] 372, 383 (1994), the Idaho legislature passed a statute forbiding the "export" of Idaho water in amounts greater than 50 cubic feet per second without specific legislative authorization. IDAHO CODE [subsections] 42-108, 42-401 (1996). The legislature did reluctantly approve interim legislation allowing the "export" of the original 427,000 acre-feet by the Bureau, a "temporary experiment" that is due to expire at the end of 1999. See IDAHO CODE [sections] 42-1763B (1996).

The Bureau, apparently under direction from Interior Secretary Babbitt, has so far adhered to these Idaho laws--even though similar "export" statutes appear plainly unconstitutional under the federal Commerce Clause, as interpreted in Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982), and even though the ESA arguably supersedes earlier statutes like the Reclamation Act. See Amy K. Kelly, Federal Reclamation Law, in 4 WATERS AND WATER RIGHTS [sections] 41.04(a) (Robert E. Beck ed., 1991) (stating that [sections] 8 governs "unless inconsistent" with a specific federal directive (citing California v. United States, 438 U.S. 645, 670, 671, 679 (1978))); see also Saving Idaho's Salmon, supra note 3, at 61, 690-91 n. 133, 709 (questioning the constitutionality of the Idaho statutes).

(67) IDF&G, supra note 34, at 14.

(68) See State of Idaho, Office of the Governor, State of Idaho Comment: Draft Supplemental Biological Opinion of the Federal Columbia River Power System, in 2 IDF&G, supra note 34, app. 1.5.

(69) See Margaret Hollenbach, Study: Higher Flows Increase Fall Chinook Survival, COLUMBIA BASIN BULL., (July 24, 1998) <http://www.nwppc.org/bull_07.htm> (discussing a June 3, 1998 memorandum from state and federal salmon managers summarizing migration results from 1995-97).

(70) HARZA NORTHWEST, INC., FINAL REPORT: SALMON DECISION ANALYSIS: LOWER SNAKE FEASIBILITY STUDY 1-16 (1996).

(71) RETURN TO THE RIVER, supra note 2, at 268-69, 513.

(72) IDF&G, supra note 34, at 16-17.

(73) In a sense, NMFS's reliance on trucking and barging juvenile salmon under the ESA belies the myth that the ESA is insensitive to economic concerns. Beyond Parity, supra note 10, at 120.

(74) See infra notes 134-52 and accompanying text.

(75) The Columbia Basin Fish and Wildlife Authority, formed in 1985, is a coalition of federal, state, and tribal fish and wildlife agencies that facilitates interagency coordination on issues of regional significance. The authority not only produced the Detailed Fishery Operating Plan, infra note 76, but also a schedule of biologically based river flows to facilitate salmon migration and an integrated basinwide plan aimed at doubling salmon runs. Michael C. Blumm, Columbia River Basin, in 6 WATERS AND WATER RIGHTS, supra note 66, at 133.

(76) COLUMBIA BASIN INDIAN TRIBES AND STATE & FEDERAL FISH & WILDLIFE AGENCIES, DETAMED FISHERY OPERATING PLAN WITH 1994 OPERATING CRITERIA (1993) [hereinafter DFOP]. The purpose of the report was to assist the fishery agencies and tribes in submitting annual recommendations for the Pacific Northwest Coordination Agreement, an agreement between federal water managers and private utilities that governs annual Columbia Basin Dam operations. See 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, 245-46, 250-54 (1981) [hereinafter Hydropower vs. Salmon] (describing the Pacific Northwest Coordination Agreement).

(77) DFOP, supra note 76, at 2-8.

(78) Id. at 3, 20-24.

(79) Id. at 21-22.

(80) Id. at 22-23.

(81) Id. at 4. "Minimum operating pool" is the "lowest water level of an impoundment at which navigation locks can still operate," which is higher than a drawdown to spillway crest. 1994 AMENDED PROGRAM, supra note 19, at G-9.

(82) See infra note 159 and accompanying text.

(83) DFOP, supra note 76, at 6-8.

(84) 1991 AMENDMENTS, supra note 9, at 27-28.

(85) BOOKMAN-EDMONSTON, supra note 65, at 8, 9, 12; VOLKMAN, supra note 61, at IV-51 to IV-52.

(86) BIOP, supra note 12, at 8.

(87) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994). In the summation of his opinion Judge Marsh commented broadly on the efficacy of salmon recovery efforts:

   The 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 action agencies have narrowly focused
   their attention on what the establishment is capable of handling with
   minimal disruption.

Id. at 900. See also infra notes 230-37 and accompanying text (discussing this case in greater detail).

(88) MUNDY ET AL., supra note 16, at 3.

(89) Id. at 116.

(90) Id. at 83.

(91) Id. (emphasis omitted). According to the report, "[w]hat really matters to the recovery program is the overall survival rate of the populations, and the ability of transportation, relative to other mitigative measures such as spill, to have a meaningful impact on those survival rates." Id. (emphasis omitted).

(92) Id. at 84.

(93) Id. at 32.

(94) Id.

(95) Id. at 101-02, 108-09, 114.

(96) Id. at viii, 117-18.

(97) See supra note 19; Saving Idaho's Salmon, supra note 3, at 688 (discussing the Andrus proposal). The program called for operating John Day Reservoir at near minimum operating pool year round, contingent upon providing economic mitigation for irrigators and other river users. 1994 AMENDED PROGRAM, supra note 19, at 5-32. For an insightful discussion of the interplay between the fish restoration plans of the Council and NMFS under the ESA, see VOLKMAN, supra note 61, at IV-41 to IV-50, IV-65 to IV-71.

(98) 1994 AMENDED PROGRAM, supra note 19, at 5-6 to 5-7.

(99) Id. at 5-46.

(100) Id.

(101) See UPSTREAM, supra note 37, at vii.

(102) Id. at 241.

(103) See supra notes 93-96 and accompanying text.

(104) Some fish advocates argued that the composition of the committee compromised its product, noting that the chief author of the committee's recommendation concerning transportation and its alternatives was Donald Chapman, a biologist who has spent his career in the service of utilities and electricity-intensive industries like aluminum companies. Paul Koberstein, Fishy Science: How Scientists Endanger the Salmon, CASCADIA TIMES, Jan. 1996, at 10, 13.

(105) UPSTREAM, supra note 37, at 4. The Committee did not, however, endorse lowering John Day Reservoir to minimum operating pool (see discussion supra note 81) because it concluded that only natural drawdowns offered higher survival benefits than truck and barge transportation. UPSTREAM, supra note 37, at 10, 253.

(106) TRIBAL PLAN, supra note 20, at 5B-24 to 5B-31.

(107) Id.

(108) Id. at 5B-27 to 5B-30. 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." Id. at 5B-30.

(109) The plan included interim seasonal reservoir drawdowns to facilitate juvenile salmon migrations, but endorsed permanent drawdowns as the long-term solution, proposing three alternative permanent drawdown plans: 1) draw down John Dayand Ice Harbor Reservoirs to natural river levels, 2) draw down John Day to spillway crest and Ice Harbor and Lower Monumental to natural river levels, or 3) draw down John Day and the four lower Snake River reservoirs to natural river levels. The plan estimated that the first option would improve salmon survival 3-fold, the second 3.4-fold, and the third 4-fold. Id. at 5B-30 to 5B-31.

(110) Id. at 5B-27, 5B-29.

(111) See supra notes 99-100 and accompanying text; see also Beyond Parity, supra note 10, at 58-59 (discussing the Northwest Power Planning Council's changed position on the use of barging and trucking juvenile salmon).

(112) Beyond Parity, supra note 10, at 112.

(113) RETURN TO THE RIVER, supra note 2, at xvii, 5; see also id. at 19 (defining a normative ecosystem as one "which ensures we provide the essential ecological conditions and processes necessary to maintain diverse and productive salmonid populations"). The ISG Report confirmed the common sense proposition that fish need a river. Thus, in addition to water, habitat diversity is critical to maintaining healthy populations. To supply the resiliency necessary to both avoid extinction and restore harvestable levels, stable core populations in prime habitat must be strong enough to support more transient satellite populations in less-ideal habitat. Migrating juveniles thus require, for example, not a canal or a slow-moving slack-water reservoir, but a complex system of backwater sloughs, channels, pools, riffles, and rapids in which they can rest and feed. However, this "normative river" concept does not envision a return to completely natural rivers, but rather decision making that uses norms or standards that are based on those ecological attributes and processes characteristic of productive salmonid-bearing large river systems throughout the world. See supra note 22 and accompanying text.

(114) RETURN TO THE RIVER, supra note 2, at 5, 506.

(115) Id. at 510.

(116) Id. at 328. The report also cast doubt on the role of large-scale hatchery production. Id. at 398. The Council has established a permanent scientific advisory body, now called the Independent Scientific Advisory Board (ISAB). In August 1998, ISAB--acting on its own initiative--released a report calling for protection of juvenile salmon in the Hanford Reach from mortality due to hydro operations known as "power peaking." Independent Scientific Advisory Board, Recommendation for Stable Flows in the Hanford Reach During the Time When Juvenile Fall Chinook are Present Each Spring (visited Jan. 2, 1999) <http:// www.nwppc.org/98-5hanf.htm>. Operators often tailor flow releases from storage reservoirs to coincide with daily periods of peak power demand. While such operations maximize power generation and revenue, they cause stranding mortality of newly hatched juvenile salmon. Stranding occurs because in the spring and early summer, after juvenile salmon hatch, they tend to rest and feed in areas near the shorelines. Increased flows carry the fish into shallow shoreline areas, where they can become trapped and die when the water suddenly recedes. Utilities--particularly the owners of private dams on the mainstem Columbia below Chief Joseph Dam--oppose efforts to reduce power peaking because of consequent reduction of power generation and revenue. Id.

(117) RETURN TO THE RIVER, supra note 2, at 328.

(118) Id. at xx, 509.

(119) Id. at 268-69, 513. ISG's recommendation concerning lowering John Day Reservoir was perhaps the most controversial recommendation in its report, prompting a "war of words" between the two Washington representatives on the Northwest; Power Planning Council and the irrigated agriculture community. Battle Lines Form Over John Day Drawdown, NORTHWEST SALMON AND STEELHEAD RECOVERY REP. Mar. 7, 1997, at 12. John Day Reservoir, at 77 miles in length (almost the size of the reservoirs formed by the first three lower Snake dams combined), has long been thought by many to be the single deadliest place for downstream migrating smolts in the Columbia Basin, due to delayed travel time, predation, water temperature, and passage problems. Id at 1. The Northwest Power Planning Council's 1994 program amendments included a measure calling for a drawdown to minimum operating pool, an approximate 5-foot drawdown from current operations, and a study of drawdown to spillway crest, another 47 feet

lower. The Council's proposals were premised on providing economic mitigation for affected users, such as irrigators, who would need their pumps modified. 1994 AMENDED PROGRAM, supra note 19, at 5-32. NMFS also included the minimum operating pool drawdown in its 1995 biological opinion on river operations and called for studies of deeper drawdowns to spillway crest and to natural river (90 feet below spillway crest). Beyond Parity, supra note 10, at 66-68. But the National Academy of Sciences concluded that the juvenile fish survival benefits of a drawdown to minimum operating pool were too small. See supra note 105. As a result, Congress declined to fund the economic mitigation the Council called for, Battle Lines Form Over John Day Drawdown, supra, at 14, although there was some question as to why BPA could not fund these measures without the need for a congressional appropriation. Beyond Parity, supra note 10, at 67 n.291.

The ISG report changed the focus from improving smolt survival to improving mainstem spawning habitat. The report noted that

   [t]he upper portion of John Day pool which lies immediately below the
   confluence of the Snake and Columbia Rivers, contains what was formerly a
   large alluvial reach that served as a highly productive area for mainstem
   spawning chinook populations. Populations in this area may have functioned
   as a metapopulation, and served as a core to stabilize chinook production
   in the region. Restoration and revitalization of the upper John Day pool as
   a free-flowing river segment might assist in the reestablishment of chinook
   salmon production and metapopulation structure through straying and
   dispersal from the adjacent Hanford Reach chinook.

RETURN TO THE RIVER, supra note 2, at 268. The report did not recommend whether to pursue a spillway crest or natural river drawdown, other than to suggest "[i]t is logical to note that if normative conditions can be enhanced through drawdown of selected reservoirs to spillway crest, then the `natural river option'. would be likely to yield normative conditions beyond that achieved by [spillway] drawdown." Id. at 268-69. A spillway crest drawdown, which would allow retention of navigation, flood control, mad about one-half (roughly 1200 megawatts per year) of current power production (about 13% of the federal power generated in the Columbia Basin), would drop reservoir levels about 40 feet, restoring about 35 miles of spawning habitat at the upper end of the reservoir. But it would be expensive to accomplish, requiring a new navigation lock, revamping fish passage facilities, powerhouse modifications, and channel dredging. Most estimates put the cost at around $1 billion and 10 to 15 years to complete. Battle Lines Form Over John Day Drawdown, supra, at 15.

Because dwindling Snake River salmon stocks may not have the tune to wait for implementation of a spillway crest drawdown, many advocate a drawdown of the John Day Reservoir to natural river level, as recommended in two of the options under the tribal restoration plan. See supra note 109. A natural river drawdown would eliminate the costs associated with retrofitting the dam but would also eliminate all of the roughly 1200 megawatts of power the project produces, costing about $220-250 million per year. On October 1, 1998, the Corps of Engineers began a year-long $3.3 million study of the economic costs and biological benefits of spillway crest versus natural river drawdowns at John Day; the Corps plans extensive opportunities for public involvement. See U.S. Army Corps of Engineers, Portland District, John Day Options Subject of Study (news release, Oct. 21, 1998); Barry Espenson, John Day Drawdown Study Launched, COLUMBIA BASIN BULL., (Oct. 30, 1998) <http:// www.nwppc.org/bull_20.htm>.

(120) RETURN TO THE RIVER, supra note 2, at 269.

(121) "Metapopulations are spatially-structured groups of local populations linked by dispersal of individuals.... Dispersal from neighboring local populations allows recolonization of habitats where local extinction has occurred." Id. at 29-30, 76 (describing how salmonid populations fit within the metapopulation concept).

(122) Id. at 268-69, 513. The report noted that the Columbia Basin contains "few remaining headwater salmon populations, many of which historically never were very productive." Id. at 509. However, the Salmon and Clearwater Rivers, while tributary, are very large rivers and their basins do possess large areas of productive habitat that could accommodate increased salmon populations that improvements in the Snake and Columbia migration corridors should produce. See supra note 2 (historical Snake River Basin salmon production).

(123) The report did not endorse seasonal drawdowns because they would tend to concentrate predators and adversely affect shallow water habitats. RETURN TO THE RIVER, supra note 2, at 268. Instead, it called for stabilizing dally flow levels to protect such habitats. Id. at xxiv. Dally flows currently fluctuate to meet peak power demands. See supra note 116.

(124) IDF&G, supra note 34.

(125) Id. at 11.

(126) Id. at 8.

(127) Id. at 6.

(128) Id. at 12.

(129) Id. at 13.

(130) Id. at 13-14.

(131) Id. at 13.

(132) Id. at 14, 15.

(133) Id. at 16-17.

(134) BIOP, supra note 12, at 6.

(135) PLAN FOR ANALYZING AND TESTING HYPOTHESES (PATH): PRELIMINARY DECISION ANALYSIS REPORT ON SNAKE RIVER SPRING/SUMMER CHINOOK (D.R. Marmorek & C.N. Peters eds., 1998) [hereinafter PATH PRELIMINARY REPORT]; see Margaret Hollenbach, Preliminary PATH Results Favor Drawdown, COLUMBIA BASIN BULL., (Aug. 7, 1998) <http://www.nwppc.org/ bull_09.htm>.

(136) See Margaret Hollenbach, PATH Asks for $40K to Finish Weighing of Evidence Process, COLUMBIA BASRA BULL., (June 5, 1998) <http://www.nwppc.org/bull_01.htm>.

(137) See Margaret Hollenbach, PATH 1998 Report Due Out in December, COLUMBIA BASIN BULL., (Oct. 30, 1998) <http://www.nwppc.org/bull_20.htm>.

(138) PATH PRELIMINARY REPORT, supra note 135, at ii. PATH subsequently was asked to evaluate maximum transportation with surface collectors; lower Snake drawdowns plus John Day drawdown; and modifications to the lower Snake River dams which might increase survival without drawdowns. Hollenbach, supra note 137.

(139) PATH PRELIMINARY REPORT, supra note 135, at vi-vii, 59, 65. The FLUSH and CRISP models are passage models that predict passage survival rates for both in-stream and transported fish traveling from the head of Lower Granite Reservoir to the tall-race of Bonneville Dam. PLAN FOR ANALYZING AND TESTING HYPOTHESES (PATH), PATH FINAL REPORT FOR FISCAL YEAR 1998, 19 (D.R. Marmorek et al. eds., 1998) [hereinafter PATH FINAL REPORT]. The FLUSH model--developed by the regions fishery agencies and Indian tribes--invariably produces results more favorable to in-river migration, while the CRISP model--developed by the Bonneville Power Administration, with the assistance of the University of Washington--often produces results which suggest that transportation produces higher survival of juvenile salmon. These tendencies stem from assumptions programmed into the models. For example, CRISP generally assumes lower in-stream survival rates for juvenile spring/summer chinook than does FLUSH. Id. at 167.

(140) Memorandum from PATH Planning Group to Implementation Team, Corrections to the PATH Preliminary Report ix (Aug. 4, 1998) (on file with authors).

(141) Id. at ix, tbl.E-1.

(142) Id.

(143) Idaho Dep't of Fish & Game, Salmon & Steelhead Recovery Update 2 (Aug. 13, 1998) (on file with authors) (briefing from IDFG to the IFG Commission).

(144) Id.

(145) Hollenbach, supra note 136.

(146) Jonathan Brinckman, Scientists Say Dam Removal Is Key, OREGONIAN, Oct. 1, 1998, at B1.

(147) Conclusions and Recommendations from the PATH Weight of Evidence Workshop, Sept. 8-10, 1998, at 18-19 (unpublished report on file with authors).

(148) Id.

(149) Id.

(150) See Brinckman, supra note 146, at B6 (discussing a statement of Doug DeHart). The Chairman of the Northwest Power Planning Council was quick to point out that the report was limited to the science of recovering the Snake River salmon and did not address "other species in the basin." He suggested that the Council would soon amend its fish and wildlife program to incorporate a framework that would allow the weighing of "all relevant factors, including the biology of multiple species, social and economic impacts." Northwest Power Planning Council, News Release, Oct. 1, 1998 (quoting John Etchart). For the reasons we set out in the conclusion, we do not think the development of such a multi-species framework plan should serve as a reason to delay breaching the lower Snake River dams. See infra notes 346-57 and accompanying text.

(151) PATH FINAL REPORT, supra note 139, at 24.

(152) Margaret Hollenbach, PATH Presents FY 1998 Final Report, COLUMBIA BASIN BULL., (Dec. 11, 1998) <http://www.nwppc.org/bull_25.htm>.

(153) THE COST OF DOING NOTHING, supra note 51, at 1.

(154) See Saving Idaho's Salmon, supra note 3, at 672.

(155) U.S. ARMY CORPS OF ENG'RS, COLUMBIA RIVER SYSTEM OPERATION REVIEW, FINAL ENVIRONMENTAL IMPACT STATEMENT 3-3 (1995) [hereinafter CORPS SOR] (none of the lower Snake River dams is authorized for flood control, and while John Day is, it is not operated for flood control); REED BURKHOLDER, BREACHING DAMS TO SAVE IDAHO'S SALMON AND STEELHEAD: AN ANALYSIS OF THE NATURAL RIVER OPTION 19-20 (1996) (citing U.S. ARMY CORPS OF ENG'RS, WALLA WALLA DIST., INVESTIGATION OF PUMPING FACILITIES--LOWER SNAKE RIVER (1991) (noting that the only irrigation from the lower Snake dams serves thirteen corporate farms from the Ice Harbor Reservoir)).

(156) CORPS SOR, supra note 155, at 5-1 to 5-2.

(157) See infra note 185.

(158) HARZA NORTHWEST, supra note 70.

(159) Id. at 1-9.

(160) Id. at 1-10. The report rejected seasonal drawdowns because 1) the engineering is complex, 2) the construction period is long (15 years) and costly, 3) vertical river fluctuations of 50 to 100 feet would create more biological damage while providing only 5 months of electric generation, 4) seasonal drawdowns are of no help to adult fish, and 5) seasonal drawdowns would probably do more habitat damage than stable reservoirs. Id. at 1-9. A subsequent Corps report recommended eliminating seasonal drawdowns from further study due to lack of biological effectiveness, high costs, environmental effects, and technical feasibility questions. U.S. ARMY CORPS OF ENG'RS, WALLA WALLA DIST., LOWER SNAKE RIVER JUVENILE SALMON MIGRATION FEASIBILITY STUDY: INTERIM STATUS REPORT ES-14 to ES-15 (1996).

(161) HARZA NORTHWEST, supra note 70, at 1-16.

(162) Id. at 1-10 to 1-11. Annual costs would rise from $75 million to $153 million if the natural river option was not adopted until 1999 or later, due to ongoing investments at the dams to improve salmon survival like extended length screens, flip lips, and surface collectors. In addition, dam rehabilitation measures will soon begin. Id. at 1-11 to 1-12.

(163) Id. at 1-14 (estimating the costs of spill and flow augmentation at $125 million annually).

(164) Susan Whately & Rocky Barker, Breaching: A Natural River Saves Fish and Money, IDAHO STATESMAN, July 20, 1997, at 12A.

(165) Id. The Idaho Department of Fish and Game estimates that the average size of the Idaho salmon runs in the 1960s was more than 100,000 fish. IDF&G, supra note 34, at 5.

(166) The Idaho Statesman relied on DON READING, THE ECONOMIC IMPACT OF STEELHEAD FISHING AND THE RETURN OF SALMON FISHING IN IDAHO (1996). Reading concluded that steelhead fishing during the 1992-93 season was responsible for over $90 million in expenditures and nearly 2700 jobs. He also estimated that a return to 1950s levels of salmon returns would produce an additional $60 million and 1800 more jobs. Id. at 1. The $150 million total is almost surely an underestimate, because a restoration of salmon fishing would increase steelhead fishing as well. A revised study is underway as of this writing.

(167) Whately & Barker, supra note 164, at 12A; see also Barry Espenson, Bureau Mulls Million Acre Feet Flow Augmentation, COLUMBIA BASIN BULL., (Aug. 28, 1998) <http:// www.nwppc.org/bull_11.htm> (discussing a preliminary analysis of the Bureau of Reclamation estimating that an additional one million acre-feet of water from upper Snake Basin Reservoirs would take water from at least 400,000 acres of farmland in average years and could require up to 3 million acre-feet of water now devoted to irrigation); N.S. Nokkentved, Salmon Recovery Flows May Dampen Irrigation in Southern Idaho, TWIN FALLS TIMES-NEWS, NOV. 30, 1998 (estimating the Bureau of Reclamation's efforts to purchase or lease an additional one million acre-feet of water "could dry up 360,000 acres of farmland in southern Idaho and Eastern Oregon").

(168) See supra note 156 and accompanying text.

(169) Whately & Barker, supra note 164, at 13A.

(170) Id. The $509 million in annual costs included $34 million in lost income for Port of Lewiston, $85 million to pay the federal treasury back for the cost of building the dams, $60 million in lost recreation use at the four reservoirs, $40 million to extend irrigation pipes and increased electric costs to pump water to irrigators, $40 million to breach the dams, and $250 million in BPA power losses. The $692 million in annual benefits included: $248 million to the state and the Nez Perce tribe in recreation and tourism (not including tens of millions of dollars in commercial and sport fishing benefits in the Pacific Ocean); $98 million by terminating the subsidy to barge navigation; $317 million in spending on fish hatcheries, Idaho water, and fish passage at the dams; and $29 million in dam operation and maintenance costs (expected to rise in the next century). Id.

(171) Id.

(172) Tom Kenworthy, Letter From Idaho; Salmon's New Ally Quite a Catch, WASH. POST, Oct. 14, 1997, at A6.

(173) Witt Anderson et al., Fish and Wildlife Recovery in the Pacific Northwest: Breaking the Deadlock (Nov. 18, 1997) <http://www.newsdata.com/enernet/xpan/deadlock/fwreport.html>.

(174) Id. at 8.

(175) Id. app. B, at 1-2.

(176) A mill is 1/10 cent per kilowatt hour. BPA's current priority firm rate is 24.4 mills, including 3.2 mills for transmission. Id. app. B, at 2.

(177) Id. app. B, at 3.

(178) Id.

(179) Id. app. B, at 3-4.

(180) Id. app. B, at 5.

(181) Id. app. B, at 3-4.

(182) Id. app. B, at 5.

(183) PHILIP S. LANSING & EVE VOGEL, RESTORING THE LOWER SNAKE RIVER: SAVING SNAKE RIVER SALMON AND SAVING MONEY 2 (n.d.).

(184) Id. at 4. Compare the Idaho Statesman's estimate of a net economic benefit of $183 million. Supra note 170 and accompanying text.

(185) Id. at 3-4; see also id. at 13, 26-29 ($194.4 million annually in salmon .restoration costs); id. at 25 ($114 million in subsidies to navigation and irrigation); id. at 17-18, 29 (below cost power sales); id. at 19-21, 30-32 (noting that subsidized navigation costs shippers $1.23 per ton, while electric ratepayers and taxpayers pay an additional $12.66 per ton); id. at 22-24, 32-34 (noting that ratepayers and taxpayers pay $11.2 million annually to subsidize thirteen agribusiness irrigators pumping water from Ice Harbor Reservoir for roughly 1/2% (35,000 acres) of the total of all irrigated acreage from Snake River water sources, and that, without this subsidy, these farms actually run at a net loss).

(186) Id. at 4.

(187) Letter from Thomas M. Power, Professor and Chair, University of Montana, to Ken Rait, Oregon Natural Resources Council (Apr. 24, 1998) (on file with authors).

(188) IEAB Review Comments on Restoring the Lower Snake River. Saving Snake River Salmon and Saving Money (presented at Council's meeting on November 4-5, 1998) (on file with authors); Barry Epson, Economists Question Breaching Theory, COLUMBIA BASIN BULL., (Nov. 12, 1998) <http://www.nwppc.org/bull_21.htm>.

(189) IEAB Review Comments on Restoring the Lower Snake River: Saving Snake River Salmon and Saving Money, supra note 188.

(190) LANSING & VOGEL, Supra note 183, at 19. Another recent study concluded that multi-car (25 to 26 car) rail units would provide cheaper average transport for wheat shipped throughout the eastern Columbia Basin than truck-barge transport. See KEN CASAVANT & ERIC JESSOF, TRANSPORTATION CHARACTERISTICS OF WHEAT MOVEMENTS IN IDAHO 41 (1996) (Washington St. Univ. Dep't of Agriculture EC., report to the Idaho Wheat Comm'n). The study determined that even three-car rail units would provide cheaper transport of wheat for virtually all areas of the Columbia Basin (except those in Washington close to the river) than truck-barge transport. Id. at 39-40.

(191) As found in FRED MUNSON & SCOTT HIGHLEYMAN, DAM REMOVAL AS A TOOL FOR ANDROMOUS FISH RESTORATION: AN ASSESSMENT (1998); EBAN GOODSTEIN, DAM ECONOMICS: OVERVIEW AND APPLICATION TO THE LOWER SNAKE RIVER (1998).

(192) Id. at C-3, C-17, C-20.

(193) Id. at C-15.

(194) Id. at C-8 to C-13.

(195) Id. at C-9 to C-11.

(196) Id. at C-14 to C-17.

(197) Goodstein reported that a study in connection with the proposed removal of the Elwah dam in Olympic National Park suggested that the "existence value" to citizens across the United States of restored salmon runs was extremely high: on the order of $3 to 6 billion. Id. at C-17.

(198) Id. at C-18.

(199) See supra notes 173-182 and accompanying text.

(200) NORTHWEST POWER PLANNING COUNCIL, ANALYSIS OF THE BONNEVILLE POWER ADMINISTRATION'S POTENTIAL FUTURE COSTS AND REVENUES (1998) [hereinafter NPPC ANALYSIS].

(201) See supra note 175 and accompanying text.

(202) NPPC ANALYSIS, supra note 200, at 6.

(203) Id. at 7.

(204) Id. The Council indicated that, with financial reserves of $500 million, BPA could minimize the adverse effects of drawdowns under a low market price scenario but not eliminate deficits. Id. at 8.

(205) Id. at 4, 35. See supra note 185 and accompanying text.

(206) Id. at 9, 39, 47. The critical period is from 2007-2011, when revenue losses due to drawdowns would occur and before BPA's debt service on its failed nuclear power plant program begins to decline. Id. at 7.

(207) BONNEVILLE POWER ADMIN., REVISED BRIEFING ON FISH FUNDING OPTIONS 21-22 (1998) (concluding that BPA rates will be sufficient to cover a five-dam drawdown and repay BPA's obligation to the U.S. Treasury in all but the very worst case scenarios).

(208) See supra note 185 and accompanying text.

(209) See Whately & Barker, supra note 164, at 12A; LANSING & VOGEL, supra note 183 and accompanying text.

(210) If the Lansing report's figures on subsidies are accurate--$236 million annually--their elimination would produce a contingency reserve of $4.72 billion over a 20-year period. See supra note 185 and accompanying text.

(211) Former BPA Administrator Randy Hardy endorsed use of transmission charges, which he referred to as a "system benefit charge," to help fund fish and wildlife costs and other BPA public purposes. Beyond Parity, supra note 10, at 110-11. In 1997, BPA commissioned a transmission surcharge study which concluded that as much as an additional $200 million annually could be generated by transmission surcharges without endangering BPA's competitiveness. POWER TECHNOLOGIES, INC., POTENTIAL BPA ECONOMIC IMPACTS FROM CHANGING RIVER OPERATIONS (1997) (report to the Bonneville Power Administration).

(212) NPPC ANALYSTS, supra note 200, at 4.

(213) F. Lorraine Bodi, Salmon in the Balance, in COMPETING FOR THE COLUMBIA, supra note 17. See also infra note 360 (estimating a rate effect of slightly over 10%).

(214) BIOP, supra note 12, at 93-94.

(215) Id. The March 2, 1995 BiOp covered Federal Columbia River Power System (FCRPS) operations for 1995-1999. Earlier BiOps were issued May 26, 1993 and March 16, 1994. The Oregon district court remanded the 1993 BiOp to NMFS following an Idaho challenge in Idaho Department offish & Game v. National Marine Fisheries Service, 850 F. Supp. 886, 900 (D. Or. 1994) remanded with instructions to vacate and dismiss as moot, 56 F.3d 1071 (9th Cir. 1995). Prior to that decision, however, NMFS released in March 1994 a new BiOp covering 1994-1998 FCRPS operations and the juvenile transportation program. Following the court's decision in Idaho Department offish & Game, NMFS reinitiated consultation on the federal actions covered in the 1994 BiOp, producing the 1995 biological opinion, which governed federal hydroelectric operations since that time. Beyond Parity, supra note 10, at 62 n.257.

(216) BIOP, supra note 12, at 91. This BiOp was produced pursuant to the court's directive in Idaho Dep't of Fish & Game, 850 F. Supp. at 886. See Beyond Parity, supra note 10, at 62-73, for details.

(217) BiOP, supra note 12, at 92-94.

(218) Bennett v. Spear, 520 U.S. 154, 178-79 (1997) (authorizing challenges to BiOps prior to implementation).

(219) 16 U.S.C. [sections] 1536(a)(2) (1994). There is an exemption process available. Id. 1536(g)-(h).

(220) 16 U.S.C. [sections] 1536(a)(2).

(221) See infra notes 243-44.

(222) 50 C.F.R. [sections] 402.02 (1997).

(223) Id. [sections] 402.14(g).

(224) BiOP, supra note 12, at 88-91.

(225) 50 C.F.R. [sections] 402.14(h) (1997). NMFS also must formulate and include in the BiOp discretionary conservation recommendations that will assist the agency in reducing or eliminating adverse impacts of proposed actions on the listed species. Id.

(226) Pacific Northwest Generating Coop. v. Brown, 822 F. Supp. 1479, 1.493 (D. Or. 1993), aff'd, 38 F.3d 1058 (9th Cir. 1994).

(227) For a discussion of how the federal trust obligation should affect ESA decision making, see Mary Christina Wood, Fulfilling the Executive's Trust Responsibility Toward Native Nations on Environmental Issues: A Partial Critique of the Clinton Administration's Promises and Performance, 25 ENVTL. L. 733, 778-99 (1995); see also Wood, supra note 1, at 255-67 (arguing the agency deference rule should be limited in judicial review of ESA jeopardy determinations because: such decisions must be based on "best available" science; "acceptable risk" judgments that are mixed questions of policy, fact, and law; and less judicial deference is warranted under the Supreme Court's decision in Daubert v. Merrill Dow Pharmacuticals, 509 U.S. 579 (1993)).

(228) Michael C. Blumm & Brett M. Swift, The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: A Property Rights Approach, 69 U. COLO. L. REV. 407, 460 (1998) [hereinafter Piscary Profit].

(229) See Wood, supra note 1, at 265-67.

(230) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994).

(231) Id. at 893.

(232) Id.

(233) Id. at 900. "Instead of looking for what can be done to protect the species from jeopardy, NMFS and the action agencies have narrowly focused their attention on what the establishment is capable of handling with minimal disruption." Id.

(234) Id. at 898-99 (criticizing NMFS for disregarding the risks associated with small populations, such as inbreeding, and the "extinction vortex," where environmental catastrophes could extinguish the species).

(235) 16 U.S.C. [sections] 1536(a)(2) (1994).

(236) Idaho Dep't of Fish & Game, 850 F. Supp. at 900.

(237) Id.

(238) American Rivers v. National Marine Fisheries Serv., No 96-384-MA (D. Or. Apr. 3, 1997), appeal docketed, No. 97-36159 (9th Cir. Mar. 21, 1998). Four years earlier, Judge Marsh rejected an environmentalist challenge to NMFS's issuance of a "take" permit under [sections] 10 of the ESA, 16 U.S.C. [sections] 1539(a)(1)(A) (1994), to the Corps of Engineers allowing the program of trucking and barging transport of juvenile salmon to proceed. Northwest Resource Info. Ctr. v. National Marine Fisheries Serv., No. 93-469-MA, (D. Or. Apr. 30, 1993) (on file with authors) (noting that while the transportation program has been used for over 20 years without stemming the decline of wild salmon, there was no "direct causal link between the salmon's decline and [the] transportation program" and therefore the court could not substitute its judgment for NMFS's once the agency had made a reasoned evaluation of the relevant information).

(239) American Rivers, No. 96-384-MA at 26.

   As a long-time observer and examiner [of salmon restoration efforts], I
   cannot help but question the soundness of the selected level of risk
   acceptance, but the ESA says nothing about risk tolerance and the limits of
   judicial review dictate that I not interfere with a federal agencies' [sic]
   exercise of professional judgment or their reasoned decisions.

Id.

(240) Id. at 5-7, 11 (noting Montana's contentions that flow provisions for salmon conflicted with needs of Kootenai white sturgeon and bull trout, species at that time listed under the ESA and under consideration for listing, respectively; also noting that Idaho, which challenged the 1993 BiOp, now supported the revised BiOp, and that the upper basin Colville and Spokane tribes sought to protect reservoir levels behind the Grand Coulee Dam, while the lower basin tribes wanted to draft the reservoir to increase river flows for salmon migration).

(241) BIOP, supra note 12, at 93-94. The case is on appeal to the Ninth Circuit. See supra note 238.

(242) See generally Hydropower vs. Salmon, supra note 76, at 223-56 (detailing the operation of the Federal Columbia River Hydropower System).

(243) See, e.g., Sierra Club v. Marsh, 816 F.2d 1376, 1389 (9th Cir. 1987). Courts have sanctioned departures from a biological opinion's "reasonable and prudent alternative" only under very narrow circumstances. In Tribal Village of Akutan v. Hodel, 869 F. 2d 1185, 1193-94 (9th Cir. 1988), the court upheld an action agency's deviation from recommendations in a biological opinion, but noted that the proposed action posed virtually no risk to listed species, and emphasized that the agency had also adopted adequate alternative measures.

(244) Lone Rock Timber Co. v. U.S. Dep't of the Interior, 842 F. Supp. 433, 437 (D. Or. 1994) (citing Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir. 1987)).

(245) American Rivers, No. 96-384-MA.

(246) BIOP, supra note 12, at 113.

(247) Id. at 114.

(248) In a provision absent from earlier drafts, the final version of the 1995 BiOp required the Corps to mitigate potential effects of MOP operation on river users. BiOP, supra note 12, at 114. These mitigation measures included extending intake pipes for irrigators who withdraw water from the John Day pool. The Corps has never sought authorization or appropriations from Congress to carry out the mitigation actions.

(249) See Battle Lines Form Over John Day Drawdown, supra note 119, at 12-14.

(250) American Rivers, No. 96-384-MA.

(251) Idahoans view the "upper Snake" as the portion of the river above Milner Dam in south central Idaho, and the "middle Snake" as the stretch of river from roughly Milner to Brownlee Reservoir. Stephen Stuebner, Lawmakers Work to Find Water Solutions, IDAHO FALLS POST REG., Mar. 23, 1994, at B1. However, federal agencies, including NMFS and the Bureau of Reclamation, use "upper Snake" to refer to the entire river above Brownlee, and that use is followed here. BUREAU OF RECLAMATION, U.S. DEP'T OF THE INTERIOR, BIOLOGICAL ASSESSMENT ON BUREAU OF RECLAMATION OPERATIONS AND MAINTENANCE IN THE SNAKE RIVER BASIN ABOVE LOWER GRANITE RESERVOIR I-2 (1998) [hereinafter BIOLOGICAL ASSESSMENT].

(252) BOOKMAN-EDMONSTON, supra note 65, at 11-19. Idaho maintains that the six million acre-feet of water diverted for irrigated agriculture in the state has had only "a negligible effect" on spring/summer chinook migration. IDAHO CHINOOK REPORT, supra note 48, at 2; see also Dreher, supra note 62, at 6 (concluding that neither water storage nor irrigation have contributed to the decline in Snake River salmon); BIOLOGICAL ASSESSMENT, supra note 251, at IX-8 to IX-9, IX-12, IX-17 to IX-18, IX-22 to IX-23 (concluding that the operation and maintenance of 22 major federal storage facilities with a total of over 7 million acre-feet of active storage would not jeopardize the continued existence of Snake River salmon and steelhead).

(253) BOOKMAN-EDMONSTON, supra note 65, at 2, 8-11, 31.

(254) See Idaho Dep't of Water Resources, In the Matter of Applications for Transfer Nos. 4616-4636, and for the Amendment of Water Right Permit Nos. 25-07004 and 63-03618 in the Name of the United States Bureau of Reclamation (Idaho Dep't of Water Resources, 1995).

(255) IDAHO CODE [sections] 42-1763B (1996). Notably, the interim legislation requires that the 427,000 acre-feet provided by the Bureau under the 1995 BiOp must be "beneficially used" at least once in Idaho, through hydropower generation at one or more Idaho Power facilities. Id.

(256) See supra notes 61, 253 and accompanying text.

(257) See Beyond Parity, supra note 10, at 58 (discussing provisions in the Council's 1994 program). The Bureau and other federal agencies are currently assessing operations necessary to produce an additional one million acre-feet per year in flow augmentation. See supra note 167.

(258) See supra notes 64-66, 83-85 and accompanying text.

(259) Idaho might also lose a court case over whether its water "export" statutes are constitutional under the federal Commerce Clause, should Idaho try to restrict the Bureau from complying with a mandate to provide additional water for salmon. See supra notes 66, 254-55.

(260) Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1127 (9th Cir. 1998).

(261) Id.; O'Neill v. United States, 50 F.3d 677 (9th Cir. 1995); Carson-Truckee Water Conservancy Dist. v. Clark, 741 F.2d 257 (9th Cir. 1984).

(262) See, e.g., United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126 (E.D. Cal. 1992) (upholding liability of irrigation district for killing salmon through operation of irrigation diversions).

(263) Some continued flow augmentation from Dworshak Reservoir, supra notes 61-63 and accompanying text, and from Hells Canyon, may be necessary to meet Clean Water Act standards. See discussion infra Part V.D.

(264) 16 U.S.C. [sections] 839b(h)(1)(A) (1994). For analysis of the statute, see Michael C. Blumm & Brad L. Johnson, Promising a Process for Parity: The Pacific Northwest Electric Power Planning and Conservation Act and Anadromous Fish Protection, 11 ENVTL. L. 497, 516-36 (1981). For a recent analysis of the program, see Beyond Parity, supra note 10, at 49-62.

(265) 16 U.S.C. [sections] 839b(h)(6)(B) (1994).

(266) Id. [sections] 839b(h)(6)(E)(ii).

(267) Northwest Resource Info. Ctr. v. Northwest Power Planning Council, 35 F.3d 1371, 1388, 1391-93 (9th Cir. 1994). For a full discussion of this case, see Beyond Parity, supra note 10, at 44-49.

(268) Id. at 1395.

(269) See supra note 237 and accompanying text.

(270) There is a widespread assumption that the Council's program is not enforceable against the agencies that operate Columbia Basin dams, despite statutory directives that BPA act consistent with the Council's program, and that other federal water management agencies take the program "into account ... [in all their decision making] to the fullest extent practicable." 16 U.S.C. [sections] 839b(h)(10)(A), (h)(11) (A)(ii) (1994). See, e.g., Harvey Spigal, The Implications of Salmon Recovery for the Bonneville Power Administration and the Region, 25 ENVTL. L. 407, 409-10 (1995) (Spigal, General Counsel for the Bonneville Power Administration stated: "the Council's [Fish and Wildlife Program] is not binding on federal agencies"). But arguably the Council's program is no less judicially enforceable than NMFS's BiOps. See Beyond Parity, supra note 10, at 64-65 (contending that in each case the operating agencies have the burden of proof to supply a convincing reason for not following the salmon restoration plans of the Council and NMFS).

(271) SUSAN M. STACY, LEGACY OF LIGHT 210-14 (1991).

(272) NMFS recognized the relationship between flow augmentation and water temperatures in its 1995 BiOp. See BiOP, supra note 12, at 165 (calling for flow augmentation from Dworshak Reservoir and the Hells Canyon complex during August and September); see also Margaret Hollenbach, Study: Higher Rows Increase Fall Chinook Survival, COLUMBIA BASIN BULL., (July 24, 1998) <http://www.nwppc.org/bull_07.htm> (discussing preliminary data from NMFS showing a strong relationship between higher flows, colder water temperature, and Snake River fall chinook survival); Beyond Parity, supra note 10, at 30 n.41 (discussing a 1995 U.S. Fish and Wildlife Service report showing a "dramatic increase" in salmon smolt survival resulting from flow augmentation due to flow releases from Dworshak Dam).

(273) For example, during the high flow year of 1997, the Bureau of Reclamation had enough surplus water stored in its reservoirs to meet a Fish Passage Center request for storage releases to meet the Snake River flow target specified in NMFS's BiOp. However, although the Bureau was willing to release the water from its upper Snake Reservoirs, Idaho Power refused to pass those flows through its Brownlee Reservoir unless paid roughly $500,000. Technical Management Team: August 20, 1997 Meeting Minutes (visited Jan. 27, 1999) <http://www.npd-wc.usace.army. mil/TMT/1997/minutes/tmt0820.htm>; Recent Issues Raised to the IT (visited Jan. 27, 1999) <http://www.npd-wc.usace.army.mil/TMT/1997/ issu2it.htm>.

(274) Jack K. Sterne, One Hell of a Grand Idea: Applying the Lessons of the Grand Canyon Experiment to FERC's Relicensing of the Hells Canyon Complex, 28 ENVTL. L. 1055 (1998).

(275) 16 U.S.C. [sections] 797(e) (1994).

(276) Id. [sections] 811.

(277) 33 U.S.C. [sections] 1341 (1994).

(278) See Michael C. Blumm, Hydroelectric Regulation Under the Federal Power Act, in 4 WATERS AND WATER RIGHTS, supra note 66, [sections] 40.09(a) [hereinafter Blumm, Hydroelectric Regulation]. Although the dams are upstream of the Hells Canyon National Recreation Area, they lie within the Payette, Nez Perce, or Wallowa Whitman National Forests. Letter from Peter Monson, U.S. Department of Justice, to Michael Blumm (Aug. 18, 1998) (on file with authors). And although [sections] 6(b) of the Hells Canyon National Recreation Area Act of 1975, 16 U.S.C. [sections] 460gg-3(b) (1994), disclaimed intent to impose flow requirements under that statute or the Wild and Scenic Rivers Act, 16 U.S.C. [subsections] 1271-1287 (1994), that provision made no mention of the Federal Power Act or the Clean Water Act.

(279) Section 4(e) conditions are not limited to the reservation's original purposes, but may be based on the purposes for which the land reservation is managed Southern California Edison Co. v. FERC, 116 F.3d 507, 515-16 (D.C. Cir. 1997).

(280) Wisconsin Public Serv. Corp., 82 Fed. Energy Reg. Comm'n Rep. (CCH) [paragraph] 61,271, at 62,064 (1998).

(281) STACY, supra note 271, at 206-13; Saving Idaho's Salmon, supra note 3, at 675.

(282) Breaching the four lower Snake River dams is not the only way to create mainstem spawning habitat for fall chinook. The Hells Canyon Complex inundates habitat that historically supported most of the fall chinook spawning in the Snake River Basin. Because there is no passage at Hells Canyon, Oxbow, or Brownlee dams, spring/summer chinook and steelhead are no longer able to access what remains of their historic tributary spawning grounds. If the Corps's dams on the lower Snake are not breached, the recovery burden, especially for fall chinook, may fall squarely on Idaho Power Company. While dam removal may seem unlikely, FERC has recently asserted its authority to order dam removal where a project is no longer in the public interest, as evidenced both in a 1994 Policy Statement and the recent Edwards Dam relicensing proceeding. Project Decommissioning and Relicensing; Policy Statement, 60 Fed. Reg. 339, 340 (Jan. 4, 1995); Edwards Manufacturing Co., 81 Fed. Energy Reg. Comm'n Rep. (CCH) [paragraph] 61,255, at 62,019 (Nov. 25, 1997); Blumm, Hydroelectric Regulation, supra note 278, [sections] 40.10(c)(3) (1991 & Supp. 1998). Perhaps a more likely scenario would involve FERC issuing a relicense containing state-of-the-art fish passage requirements, a flow regime that closely mimics the natural hydrograph, and altered operations to ensure increased mainstem spawning habitat.

(283) See Letter from Chuck Clark, EPA Regional Administrator, to Brigadier General Robert H. Griffin, U.S. Army Corps of Engineers (Dec. 9, 1997) (identifying numerous violations of water quality standards for temperature and dissolved gas in the mainstem Columbia and Snake Rivers); see also Conference to Focus on Water Temp Issues, COLUMBIA BASIN BULL., (Oct. 23, 1998) <http://www.nwppc.org/bull_19.htm> (noting that most of the Snake River below Hells Canyon dam violates water quality standards for temperature).

(284) See Public Utilities District No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 715 (1994) ("[P]ursuant to [sections] 401(d) [of the Clean Water Act,] the State may require that a permit applicant comply with both designated uses and the water quality criteria of the state standards.").

(285) See Escondido Mutual Water Co. v. La Jolla Band of Mission indians, 466 U.S. 765 (1984) (interpreting [sections] 4(e)) (discussed in Blumm, Hydroelectric Regulation, supra note 278, [sections] 40.09(a)(1)); Public Utility Dist. No. 1 of Okanagon County, Washington, 78 F.E.R.C. [paragrap] 61,097, 61,099 (1997) (interpreting [sections] 18) (discussed in Blumm, Hydroelectric Regulation, supra note 278, [sections] 40.09(b)); American Rivers, Inc. v. Federal Energy Regulatory Comm'n, 129 F.3d 99 (2d Cir. 1997) (interpreting [sections] 401 of the Clean Water Act) (discussed in Blumm, Hydroelectric Regulation, supra note 278, [sections] 40.08(e)).

(286) See Arkansas v. Oklahoma, 503 U.S. 91, 100 (1992) (downstream states may apply to the EPA administrator to deny water quality certificates to discharges in upstream states if they can show an "undue impact" on interstate waters).

(287) See American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act, U.S. Dep'ts of Interior and Commerce, Sec. Order No. 3206 and Appendix (June 5, 1997). For discussion of the evolution of this secretarial order, see Charles Wilkinson, The Role of Bilateralism in Fulfilling the Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, 72 WASH. L. REV. 1063 (1997). See also Mary C. Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. Rev. 1471 (1994); Mary C. Wood, Sovereignty: A New Trust Paradigm for Federal Action Affecting Tribal Lands and Resources, 1995 UTAH L. REV. 109 (1995).

(288) 33 U.S.C. [sections] 1377 (1994). Although the Hells Canyon dams are not located on-reservation, Indian water quality standards may affect activities located off-reservation. Albuquerque v. Browner, 97 F.3d 415, 418 (10th Cir. 1996); Montana v. United States EPA, 137 F.3d 1135 (9th Cir. 1998).

(289) See NATIONAL MARINE FISHERIES SERV., FACTORS FOR DECLINE: A SUPPLEMENT TO THE NOTICE OF DETERMINATION FOR SNAKE RIVER SPRING/SUMMER CHINOOK SALMON UNDER THE ENDANGERED SPECIES ACT 10-11, 15-16 (1991) (discussing the effects of low flows on Snake River fish and the effects of dam storage on flows).

(290) See Letter from William Stelle, Jr., NMFS Regional Administrator, to James J. Hoecher, Federal Energy Regulatory Commission Chair (Oct. 17, 1997) (on file with authors) (preliminarily concluding that current operations of the Hells Canyon complex are likely to adversely affect listed Snake River salmon stocks).

(291) Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 697 (1995) ("The dictionary definition of the verb form of `harm' is `to cause hurt or damage to: injure.' In the context of the ESA, that definition naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species." (citation omitted)).

(292) 16 U.S.C. [subsections] 1540(a), 1540(b) (1994).

(293) Id. [sections] 1540(g).

(294) Tennessee Valley Auth. v. Hill, 437 U.S. 153, 173 (1978); Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1054-55 (9th Cir. 1994).

(295) Idaho Power Co., 82 Fed. Energy Reg. Comm'n Rep. (CCH) [paragarph] 61,049, at 61,049 (1998).

(296) In response to NMFS's requests, FERC and Idaho Power have agreed to prepare a biological assessment--the first step in the consultation process--on "interim operations" of the dams prior to relicensing. However, it is unclear if FERC intends to amend Idaho Power's license to incorporate any recommendations NMFS makes during the consultation process. Letter from Kevin Madden, Federal Energy Regulatory Commission, to Robert Stahman, Idaho Power Company (Feb. 6, 1998) (on file with authors).

(297) American Rivers, Inc. v. Federal Energy Regulatory Comm'n, No. 98-70347 (9th Cir. Mar. 24, 1998).

(298) This issue has enormous implications for FERC-licensed facilities across the country. If FERC licenses constitute ongoing agency actions subject to [sections] 7 consultation, FERC has a duty under the ESA to revisit the existing licenses of all facilities which may affect listed species. FERC also will be virtually required to amend those licenses to incorporate the recommendations of NMFS or the Fish and Wildlife Service. Tennessee Valley Auth., 437 U.S. at 172; see supra notes 243-44 and accompanying text.

(299) NMFS noted in the BiOp that "maximum optimum temperature" for chinook and sockeye is fifty-eight degrees Fahrenheit. BiOP, supra note 12, at 165. In their "Spirit of the Salmon" restoration plan, the four lower river tribes discuss adverse impacts to salmon caused by high temperatures, citing much of the primary scientific literature on this topic. TRIBAL PLAN, supra note 20, at 3-16.

(300) TRIBAL PLAN, Supra note 20, at 3-16. See also Letter from Chuck Clark, EPA Regional Administrator for Region 10, to Brigadier General Robert H. Griffin, Commander, North Pacific Division, U.S. Army Corps of Engineers (Dec. 9, 1997) [hereinafter Clark Letter] (on file with authors) ("The water quality standard for maximum water temperature and total dissolved gas standard are commonly exceeded.").

(301) Clark Letter, supra note 300.

(302) Federal Water Pollution Control (Clean Water Act) Act, 33 U.S.C. [subsections] 1313, 1323(a) (1994).

(303) Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 696-97 (9th Cir. 1986), rev'd on other grounds, 485 U.S. 439 (1988); Oregon Natural Resources Council v. U.S. Forest Serv., 834 F.2d 842, 850-52 (9th Cir. 1987); Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1424 (9th Cir. 1989); Marble Mountain Audubon Soc'y v. Rice, 914 F.2d 179, 182-83 (9th Cir. 1990); Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1153 (9th Cir. 1998).

(304) 33 U.S.C. [sections] 1323(a) (1994).

(305) See cases cited supra note 303.

(306) WASH. ADMIN. CODE [sections] 173-201A-130(98)(a)-(b) (1997).

(307) Id. [sections] 173-201A-130(20)-(22); OR. ADMIN. R. 340-41-205(2)(b)(A)(ii) (1998).

(308) WASH. ADMIN. CODE [sections] 173-200-030(2)(a) (1997); OR. ADMIN. R. 340-041-0026 (1998).

(309) Both Washington and Oregon maintain current lists of water quality limited streams on the world wide web. For Washington's list, visit the Washington Department of Ecology, Water Quality Program (visited Jan. 27, 1999) <http://www.wa.gov/ecology/wq/303d/in-dex.html>. For Oregon's list, see Oregon Department of Environmental Quality, Water Quality Program, Water Quality Limited Streams 303(d) List (visited Jan. 27, 1999) <http:/ /waterquality.deq.state.or.us/wq/303dlist/303dpage.htm>.

(310) OR. ADMIN. R. 340-041-0026(3)(D)(i)-(ii) (1998).

(311) Beyond Parity, supra note 10, at 33 n.54.

(312) See supra note 272 and accompanying text.

(313) HARZA NORTHWEST, INC., supra note 70, at 1-10, 1-18, 4-3.

(314) See supra notes 57-59, 130 and accompanying text.

(315) See supra notes 30-31, 61-68, 256-63 and accompanying text.

(316) Piscary Profit, supra note 228, at 426-33.

(317) Id. at 440-53, 456-59 (discussing the Supreme Court decisions).

(318) Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 667-68, 684 (1979).

(319) Id. at 686 ("The central principle here must be that Indian treaty fights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but not more than, is necessary to provide the Indians with a livelihood--that is to say, a moderate living.").

(320) See Piscary Profit, supra note 228, at 463-67 (discussing cases involving the effect of the treaty fishing right on dam construction and operations); id. at 489-500 (discussing the scope of the treaty right to protection for the fish and their habitat).

(321) See supra note 287 and accompanying text.

(322) Michael C. Blumm, Reserved Water Rights, in 4 WATERS AND WATER RIGHTS, supra note 66, [sections] 37.01(b)(2) [hereinafter Blumm, Reserved Water Rights]; Winters v. United States, 207 U.S. 564, 576 (1908).

(323) See Blumm, Reserved Water Rights, supra note 322, [sections] 37.02(c), (c)(3) (discussing, inter alia, the purposes of the Colville, Spokane, Umatilla, Flathead, and Yakama reservations, all of which have been judicially interpreted to include a fishing purpose).

(324) See supra note 319.

(325) United States v. Adair, 723 F.2d 1394, 1414-15 (9th Cir. 1983); State of Washington Dep't of Ecology v. Yakima Reservation Irrig. Dist., 850 P.2d 1306, 1310 (Wash. 1993); Blumm, Reserved Water Rights, supra note 322, [sections] 37.02(b).

(326) Blumm, Reserved Water Rights, supra note 322, [sections] 37.02(b).

(327) For background on the Snake River Basin Adjudication, see DAR CRAMMOND, COUNTING RAINDROPS: PROSPECTS FOR NORTHWEST WATER RIGHT ADJUDICATIONS app. A (Northwest Water Law & Policy Project Pub. No. 95-1, 1996).

(328) Memorandum of United States and Nez Perce Tribe in Support of Joint Motion to File Amended Notice of Claim, In re SRBA, Case No. 39576 (Idaho 5th Dist. Ct. filed Apr. 24, 1998) (Subcase No. 03-10022) (on file with authors). The 1995 and 1997 affidavits of Dudley W. Reiser, Ph.D., In re SRBA, Case No. 39576 (Idaho 5th Dist. Ct.) (Subcase No. 03-10022) (on file with authors), discuss the methodology and scope of the claims.

(329) The Nez Perce Tribe's reserved water rights claim is not the only federal reserved water right claim at issue in the Snake River Basin Adjudication. Idaho counts have recently upheld substantial federal reserved water rights claims for wilderness areas and public water holes. In re SRBA, Case No. 39576, slip op. at 5-11 (Idaho 5th Dist. Ct. filed Dec. 18, 1997) (SRBA court's ruling that the federal government is entitled to a reserved right for all of the unappropriated water flows in three wilderness areas); In re SRBA, Case No. 39576, (Idaho filed Apr. 6, 1998) (Idaho Supreme Court's upholding of the federal government's reserved rights claims for public waterholes). See Blumm, Reserved Water Rights, supra note 322, 37.03(a)(5), (a)(7) (Supp. 1998). In re SRBA, Case No. 39576, (Idaho 5th Dist. Ct. filed July 24, 1998) (Wild and Scenic Rivers Claims consolidated Subcase No. 75-13316) (SRBA court's ruling that the federal government is entitled to a reserved water right for Wild and Scenic Rivers); In re SRBA, Case No. 39576, (Idaho 5th Dist. Ct. filed Sept. 16, 1998) (Sawtooth National Recreation Area Claims Consolidated Subcase No. 65-20766) (SRBA court's ruling that the federal government is entitled to a reserved water right for the Sawtooth National Recreation Area).

(330) See discussion supra Part III.

(331) Blumm, Reserved Water Rights, supra note 322, [sections] 37.04(c)(1). The Shoshone-Bannock tribe--whose reservation, like the Nez Perce reservation, is located in Idaho--had its water rights claims settled by federal legislation. Id.

(332) See Don B. Miller, A Tribal Perspective From Idaho: It's Time for Idaho Interests to Realign, in COMPETING FOR THE COLUMBIA, Supra note 17; see also N.S. Nokkentved, High-Calibre Mediator Works on Idaho Water Rights Case, TWIN FALLS TIMES-NEWS, Nov. 30, 1998, at A1 (discussing the efforts of Francis McGovern to mediate a settlement of the SRBA case).

(333) The Pacific Salmon Treaty is more correctly known as Treaty Between the Government of the United States of America and the Government of Canada Concerning Pacific Salmon, Jan. 28, 1985, T.I.A.S. No. 11,091 [hereinafter Pacific Salmon Treaty]. Limited amendments to the Treaty's Annex IV became effective August 12, 1991. Revised Annex IV to the Pacific Salmon Treaty, Aug. 12, 1991, T.I.A.S. No. 11,839. The Pacific Salmon Commission (the Treaty's implementing body) was established in U.S. law by 6 U.S.C. [subsections] 3631-3644 (1994). For more information on the Treaty itself, see Thomas C. Jenson, The U.S.-Canada Pacific Salmon Interception Treaty: An Historical and Legal Overview, 16 ENVTL. L. 363 (1986); Marlyn Twitchell, Implementing the U.S.-Canada Pacific Salmon Treaty: The Struggle to Move from "Fish Wars" to Cooperative Fishery Management, 20 OCEAN Dev. & INT'L L. 409 (1989).

(334) Pacific Salmon Treaty, supra note 333, art. III(1)(b). This principle also is embodied in the United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 21 I.L.M. 1261-1354 (1982). Neither Canada nor the United States have as yet ratified the Law of the Sea Convention, in part because of Pacific salmon allocation disputes.

(335) Chinook salmon produced from Columbia River hatchery programs have in recent years shown very poor smolt-to-adult survival rates. Natural runs typically show a 3% smolt-to-adult survival, while hatchery-produced salmon now consistently show 1/2% to 1% smolt-to-adult survival, about 1/6 to 1/3 the survival rates of wild runs, sometimes even poorer. Survival rate data show that hatchery fish are generally less well genetically or behaviorally adapted to survive hostile ocean conditions and inland predation as compared to wild runs. REVIEW OF SALMONID ARTIFICIAL PRODUCTION IN THE COLUMBIA RIVER BASIN, REPORT OF THE SCIENTIFIC REVIEW TEAM or THE INDEPENDENT SCIENTIFIC ADVISORY BOARD (Power Planning Council Document 98-33, 1998) <http://www.nwppc.org/98-33.htm>. For the most thorough available scientific discussion of the many factors which adversely impact hatchery fish survival, see BONNEVILLE POWER ADMINISTRATION, ANALYSIS OF SALMON AND STEELHEAD SUPPLEMENTATION 45-55 (1990) (technical report).

(336) Pacific Salmon Treaty, supra note 333, Preamble.

(337) Id. art. V.

(338) Id. ann. IV, ch. 1, [sections] l(c)(ii).

(339) Id. ann. IV, ch. 1, [sections] 6.

(340) Id. ann. IV, ch. 3, [subsections] 1 (in part), 2 (including an amendment to Annex IV that was entered into August 12, 1991). The Treaty required the countries to achieve escapement goals identified in a 1984 rebuilding program by 1998. Id.

(341) Dam-related mortalities cumulatively account for between 80% and 90% of all human induced wild salmon mortalities within the Columbia River system. By comparison, all sport, tribal, and commercial fishing combined (including ocean fisheries) amount to less than 5% of the total human-induced wild salmon mortalities in the Columbia River. RETURN TO THE RIVER, supra note 2, at 270-80; THE COST OF DOING NOTHING, supra note 51, at 22.

(342) This also includes serious reductions in the economic benefits of salmon and steelhead harvest in Idaho. As recently as 1988, salmon and steelhead harvests (primarily sportfishing) contributed over $93 million to the Idaho economy, and supported the equivalent of 4,750 full-time family wage jobs. Reading, supra note 166, at 1. As the resource declines in the Snake River, these jobs are slipping away. OREGON RIVERS COUNCIL, INC., RESEARCH REP. No. V, THE ECONOMIC IMPERATIVE OF PROTECTING RIVERINE HABITAT IN THE PACIFIC NORTHWEST (1992).

(343) Act of Mar. 2, 1945, Pub. Law No. 14, 79th Cong., 1st Session (1945); Hydropower vs. Salmon, supra note 76, at 233-34.

(344) Blumm, Reserved Water Rights, supra note 322, [sections] 37.01(c)(1).

(345) Miller, supra note 332, at 6, provides a blueprint for congressional and state legislation that would 1) preserve existing prime salmon habitat in the undammed Salmon and Clearwater Basins, while authorizing the breaching of the lower Snake dams, the lowering of John Day, and other structural and operation improvements; 2) settle the tribal water right claims; 3) resolve flow and passage problems on the remaining mainstem dams and reservoirs; 4) settle some of Idaho Power Company's hydroelectric relicensing problems; and 5) provide for economic mitigation for lost navigation to Lewiston, Idaho.

(346) John Saven & Glenn Vanselow, Statement of Rationale for Framework Alternative (visited Nov. 5, 1998) <http://www.nwframework.org/workshop/ppc.htm>; Wa-Kan-Ush-Mi Wa-Kish-Wit, Put the Fish Back in the Rivers (visited Nov. 6, 1998) <http:// www.nwframework.org/workshop/critfc.htm>; Upper Columbia River Fisheries Management Entities, A Holistic Vision for Columbia Basin Fish & Wildlife Restoration--With Equitable Considerations of Protection, Enhancement and Mitigation for Anadromous & Resident Fish in the "Blocked Area" of the Upper Columbia River Basin (visited Nov. 2, 1998) <http://www.nwframework.org/workshop/ucuts.htm>; Kokanee Recovery TaskForce, Kokanee Recovery Taskforce (visited Oct. 28, 1998) <http://www.nwframework.org/workshop/kokanee.htm>.

(347) RETURN TO THE RIVER, supra note 2, at 30, 268-69, 513.

(348) See supra Part III.

(349) Interior Columbia Basin Ecosystem Management Project studies point to central Idaho as one of the key anchors of salmonid restoration. DEPARTMENT OF AGRIC. ET AL., GENERAL TECHNICAL REPORT PNW-GTR-385, STATUS OF THE INTERIOR COLUMBIA BASIN: SUMMARY OF SCIENTIFIC FINDINGS 109 (1996).

(350) RETURN TO THE RIVER, supra note 2, at xx.

(351) Id. at 91.

(352) Id.

(353) Id. at xx.

(354) Telephone conservation between Don Miller and Chip McConnaha, Northwest Power Planning Council (Sept. 29, 1998).

(355) RETURN TO THE RIVER, supra note 2, at 79.

(356) Margaret Hollenbach, Feds Reject Proposal to Aid Spawners Below Bonneville, COLUMBIA BASIN BULL., (Oct. 23, 1998) <http://www.nwppc.org/bull_19.htm>.

(357) RETURN TO THE RIVER, supra note 2, at 90.

(358) See supra notes 78-80, 94-96, 110-11, 116-117, 126-129 and accompanying text.

(359) See supra Part III.

(360) See supra Part IV. One analysis of the Northwest Power Planning Council report, discussed supra notes 200-07 and accompanying text, concluded that the costs of breaching the lower Snake dams and drawing John Day down to spillway crest, see supra notes 23, 119, would amount roughly to a 5.5 mill (supra note 176) rate increase, or about a 20% increase in BPA rates. But if the lost hydropower was replaced by conservation, there would be about a 35% increase in value because conservation follows demand much better than hydropower, which has peak output in the spring. See Letter from Steve Weiss to Interested Parties (Oct. 14, 1998) (on file with authors). If the 35% increase in value means that only 65% of the lost hydropower needs to be replaced, the rate impact of breaching the lower Snake projects and lowering John Day would decrease to roughly 3 mills, or slightly over 10%. The total cost of breaching, about $219 million annually, id., would be less that the estimated $236 million the dams currently cost in terms of operation, maintenance, navigation, irrigation, and salmon recovery. See supra note 185 and accompanying text.

(361) Don B. Miller, Of Dams and Salmon in the Columbia/Snake Basin: Did You Ever Have To Make Up Your Mind?, 6 RIVERS 69 (1997). See supra notes 155-56, 162-63, 168-70, 176-82, 184-90, 192-98, 202-207 and accompanying text.

(362) LANSING & VOGEL, supra note 183, at 19-20, 30-32 (stating subsidized navigation costs shippers only $1.23 of a total cost of $13.89 per ton, less than 9% of total costs).

(363) See supra note 190 and accompanying text.

(364) Blumm, Reserved Water Rights, supra note 322, [sections] 37.04(c)(1).

(365) See supra notes 235 (ESA), 265 (Northwest Power Act) and accompanying text.

(366) 16 U.S.C. [sections] 1531(b) (1994).

(367) Id. [sections] 1539(d).

(368) See supra notes 14, 239 and accompanying text.

(369) The plaintiffs in Northwest Resource Information Center v. National Marine Fisheries Service, No. 93-469-MA (D. Or. Apr. 30, 1993), discussed supra notes 238-41 and accompanying text, raised this issue and also the ecosystem purpose of the ESA, but Judge Marsh upheld the transportation program without addressing either of these statutory provisions because he could not determine, in the face of conflicting scientific information, that there was a "direct causal link" between the transportation program and the salmon's decline. Id at 12.

(370) 16 U.S.C. [sections] 839b(h)(6)(E)(ii) (1994); see supra note 266 and accompanying text.

(371) Id. [sections] 839b(h)(6)(C) (authorizing "minimum economic cost" alternatives only when they achieve "the same sound biological objective"). See Michael C. Blumm, Fulfilling the Parity Promise: A Perspective on Scientific Proof, Economic Cost, and Indian Treaty Rights in the Approval of the Columbia Basin Fish and Wildlife Program, 13 ENVTL. L. 103, 131-39 (1982) (interpreting the meaning of "sound biological objectives" in the Northwest Power Act).

(372) See supra note 267 and accompanying text (discussing the Ninth Circuit's decision in Northwest Resource Information Center v. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994)).

(373) See supra Parts V.A, V.D, V.E.

(374) See supra note 167.

(375) See supra Part V.C.

(376) $150 million is no doubt an understated figure. See supra note 166.

MICHAEL C. BLUMM,(*) LAIRD J. LUCAS,(**) DON B. MILLER(***) DANIEL J. ROHLF,([dagger]) AND GLEN H. SPAIN([double dagger])

(*) Professor of Law, Northwestern School of Law of Lewis & Clark College; Co-Director, Northwest Water Law & Policy Project. This paper was produced as part of the project. We thank Lorraine Bodi, Andy Brunelle, Dave Cummings, Scott Highleyman, Craig Johnston, Steve Kallick, Peter Monson, John Shurts, John Volkman, and Scott Yates for comments on this Article, but they are not responsible for the conclusions we reach. Greg Corbin, third-year student, Northwestern School of Law of Lewis & Clark College, supplied able research and editorial assistance.

(**) Senior Counsel, Land and Water Fund of the Rockies, Boise, Idaho.

(***) Senior Counsel, Native American Rights Fund, Boulder, Colorado.

([dagger]) Director, Pacific Environmental Advocacy Center, Portland, Oregon; Instructor of Law, Northwestern School of Law of Lewis & Clark College.

([double dagger]) Northwest Regional Director, Pacific Coast Federation of Fishermen's Associations; Conservation Program Director, Institute for Fisheries Resources, Eugene, Oregon and San Francisco, California.