A powerful Portland judge has ruled against the latest federal plan for hydroelectric dams on the Columbia and Snake Rivers. Judge James Redden has called for a new plan by the end of 2013.

It's the third time Judge Redden has overruled federal plans – called "biological opinions." OPB's environment reporter, Rob Manning has been studying the new ruling and he joins me in the studio.

Beth Hyams:

Judge Redden has once again dealt a legal blow to the federal government and its plans for the Columbia River. Remind us of the conflict here – and are these just different rounds of the same fight?

Rob Manning:

The bottom line continues to be – how does the federal government operate a long line of hydroelectric dams without harming a dozen or so runs of threatened salmon and steelhead?

And in large part, the federal government's practice has been to maintain hydroelectric operations.

In this most recent legal opinion, Judge Redden is again critical of the approach to focus on habitat improvements. He had that criticism of the 2000 biological opinion – the first one he discarded – but at that time, part of the critique was that there wasn't money attached. This time, there is money, but Redden is still not happy with the final plan.

Beth Hyams:

And specifically, what problem does he have with the habitat improvements in the most recent plan?

Rob Manning:

I think it's interesting that Redden has been presiding over salmon and Endangered Species Act cases long enough that in rejecting this latest plan, he could refer to his own precedents – his own decisions and those backed by the Ninth Circuirt Court of Appeals. He basically concludes that the positive effects the feds are relying on are not "reasonably certain to occur" – a standard created in his rejection of the 2000 plan.

Redden concludes that the most recent plan is "arbitrary and capricious" – because it's basing the conclusion that hydro operations won't further threaten salmon on what he calls "unidentified habitat mitigation measures."

The main problem Redden has is that the feds can't hand over a list of habitat projects over the next ten years and quantify their benefits, and demonstrate that salmon will be kept from declining.

Beth Hyams:

So what happens now?

Rob Manning:

Short answer is that the dams continue to be managed under the 2008 biological opinion. And so the federal government took that as a positive sign. Redden didn't reject and replace the plan with something else. He gave them more than two years to fix it. Here's Brian Gorman with NOAA fisheries – the agency responsible for the biological opinion.

Brian Gorman:

"The most important thing of substance is that the judge has said he wants to keep the biological opinion in place until the end of 2013 as the governing document to tell the federal agencies how to operate the dams on the Columbia and Snake Rivers."

Rob Manning:

As Gorman said – Judge Redden wants a new plan by the end of 2013. In the meantime, he wants additional water spilled at the dams in the summer and springtime, to help migrating fish. 

Beth Hyams:

The feds have been facing off against a coalition of environmental groups, the state of Oregon, and the Nez Perce tribe. Are they disappointed that current operations aren't going to change much for the next two years? Or pleased that long-term, the plan has to be fixed?

 

Rob Manning:

I spoke to Nicole Cordan with Save Our Wild Salmon – and she's a veteran of the court battle. She does see a victory, in part because she doesn't think the judge had much choice but to allow the current plan, short-term. She would've liked the judge to have forced a few more improvements in how the river was managed, but she says she wasn't surprised he didn't.

Longer term, Cordan points to part of Redden's opinion which reads "as a practical matter, it may be difficult… to rel[y] only on mitigation measures" – even if they're certain to occur. Redden hints in the same part of the opinion of a "novel approach" to help salmon, quote "including dam removal."

Nicole Cordan takes that to suggest the new plan in two years should depart from recent efforts which prioritized habitat.

Nicole Cordan:

"They're going to have to look at more actions on the hydro system than they currently have in this plan. We can't have blinders on and think we can put a little more here and a little more there – this plan is a problem. The whole plan is a trainwreck, and we have to get back on track." 

Rob Manning:

Between now and the end of 2013, Judge Redden has called on the feds to continue to work with the Northwest states – including Oregon, which has been on the other side of the legal battle – to help improve the plan.  

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