Fish and wildlife planning
In the Fish and Wildlife Coordination Act of 1934 (external link, amended in 1946 and 1958), which required the federal government to take fish and wildlife into consideration in the planning of federal water development projects, and in the Mitchell Act in 1938, which funds fish hatcheries and habitat improvements, Congress attempted to address impacts on fish and wildlife in planning Columbia River dams and river operations. Other laws would follow in later years, but it is clear that practically as soon as the first Columbia River dams were completed the federal government recognized the potential impacts on fish and wildlife.
Despite the mitigation efforts these laws set in motion, such as the construction of hatcheries and restrictions on commercial fishing, salmon and steelhead continued the decline that began early in the 20th century. By the 1970s it became clear that the federally mandated actions, consultations and plans were not conserving the runs. It was time for change.
On March 5-6, 1976, the Columbia River Salmon and Steelhead Symposium was convened in Vancouver, Washington, to address the increasing polarization of fishing groups and environmental groups, on the one hand, and government agencies that managed fish and dams, on the other. Topics for discussion included dam passage problems and possible solutions, stream classification, genetic impacts as the result of interbreeding between hatchery fish and wild fish, and other related topics. It was clear from the presentations that much of the salmon restoration effort was focused on the promise of technology — better fish passage facilities, better hatchery practices, and so on.
There also was a clear focus on the need for improved salmon and steelhead management. Joe Greenley, director of the Idaho Department of Fish and Game, told the Symposium that adult salmon returning to the Snake River and its Idaho tributaries were being hammered by fishers in the lower Columbia River and that too many juvenile fish were being killed at the eight dams on the lower Snake and Columbia as they migrated to the ocean. He said it was time to get serious about improving fish passage at Columbia and Snake river dams, particularly for juvenile fish migrating to the estuary. Fixing the dams, Greenley said, would be nothing more than a matter of “putting them in proper operating order.” He added, “If barges couldn’t pass through or electricity couldn’t be generated, no one would question the cost of fixing the dams.” That same year, 1976, the U.S. Supreme Court allowed Idaho to file a complaint requesting equitable apportionment of the anadromous fish harvest in the Columbia-Snake system.
Wes Ebel, then a biologist with the U.S. Army Corps of Engineers, told the gathering that the agency saw promise in hatcheries and in fish passage improvements at the dams:
“We believe that if things proceed as they are now, combining the traveling screens and placing them in operation on schedule, expanding the [juvenile fish] transportation effort on schedule, and adding the spillway deflectors at the dams to reduce the nitrogen concentrations, we can restore the adult steelhead runs to their former levels within two to three years.”
There were calls for a more inclusive form of salmon and steelhead management among the Columbia River Basin salmon states — Idaho, Oregon, and Washington. According to The Oregonian newspaper, Governor Dan Evans of Washington told the assembly: “. . .a satisfactory solution to the migratory fish crisis cannot be achieved without a compact that gives Idaho the same authority as Oregon and Washington in managing the runs.” Evans said that while fish management should remain with the states, the federal government should bear the major part of the cost of rehabilitating the fish runs, and the effort should span the gamut of impacts to the fish including hydropower, habitat, hatcheries, and harvest.
These are principles that would be embodied in the Northwest Power Act, which Congress would pass in late 1980. The Northwest Power and Conservation Council, created by the four Northwest states of Idaho, Montana, Oregon, and Washington in response to the Power Act, tackled these issues beginning with its first Columbia River Basin Fish and Wildlife Program in November 1981. In that program, the Council focused most of its attention on improving fish survival at hydropower dams. During the 1980s a number of actions were undertaken at the dams including the installation of juvenile fish bypass systems and screens to divert juvenile fish away from turbines and into the bypass systems.
While some Columbia River salmon and steelhead runs were impressive in the mid-1980s, many of those fish were returning to lower-river hatcheries. The big numbers masked the troubling and continuing downward trend in the number of wild fish returning to spawning areas upriver. To address this problem, in October 1992 the Power and Conservation Council completed its Strategy for Salmon, which amended the Council’s fish and wildlife program with a number of recommendations — developed primarily by fish and wildlife agencies and Indian tribes — including higher Columbia and Snake River flows in the spring and early summer to assist juvenile salmon and steelhead migration, particularly the Snake River stocks that had been petitioned for listing as endangered or threatened species.
The Strategy was the third of four phases of amendments to the program. The first was in August 1991, following the SALMON SUMMIT. In that amendment phase, the Council adopted a group of high-priority fish habitat and production measures, including a program to screen irrigation water diversions, pilot projects to reduce water consumption for irrigation to leave more water in streams for fish and a project to protect and rebuild critically depleted Snake River sockeye salmon populations.
The second phase, completed in December 1991, included measures such as flows and minimal reservoir drawdowns (these did not require structural modifications of the dams) to increase fish survival during migration in the mainstem Snake and Columbia rivers. These were intended to be implemented during the spring and early summer juvenile fish migration in 1992. Importantly, the Phase Two amendments also took the first steps toward deeper drawdowns of the Snake River dams. In those amendments, the Council “identif[ied] actions necessary to develop, demonstrate and implement a reservoir drawdown strategy for the lower Snake River.” The Council asked for semiannual progress reports on “tests and evaluations” of actions that would “identify biological benefits for weak stocks and strategies to mitigate adverse effects on other river users” beginning May 30, 1992, interim reports by November 1, 1992 and final reports by November 1993. The Council also intended its drawdown proposal to be implemented by April 1995.
The third amendment phase — entitled the Strategy for Salmon — incorporated the first two phases of the amendments and also took the drawdown measures a step farther by establishing a drawdown strategy, as opposed to the studies and reports recommended in Phase Two. The Strategy for Salmon called for immediate actions at Snake and Columbia river dams to protect ESA-listed Snake River salmon, and other fish that migrate past the dams, including increased water spills over dams; increased water storage in winter and partial drawdowns of reservoirs in spring to boost the volume and velocity of flows; an accelerated construction schedule for fish-diversion screens in front of turbine intakes, and improved barge transportation of juvenile fish past the dams. For the longer term, the strategy included 1) drawdown of the four lower Snake River dams that would be phased in over six years beginning in 1996, not 1995 as recommended in the Phase Two amendments; 2) a proposal for seasonal power exchanges that would boost hydropower generation in summer and reduce it in winter so that more water could be stored for spring and summer flow augmentation; 3) a plan for increased water storage in the upper Snake River Basin to boost spring and summer flow augmentation; and 4) a plan to step up agricultural water conservation in order to leave more water in rivers for fish.
The strategy was important because the Council, for the first time in its fish and wildlife program, addressed ESA-listed species of salmon in the Columbia River Basin. The Council completed the Strategy for Salmon before the National Marine Fisheries Service completed its Draft Recovery Plan for Snake River Salmon.
Bold as it was — in fact, because of its boldness — the Strategy was challenged in court almost immediately, and the key issue was the controversial drawdown proposal. Challenges came from both sides of the ideological spectrum, from those who endorsed the proposal but thought its one-dam-at-a-time sequence was not aggressive enough, and by those who opposed drawdowns. By law, the Ninth U.S. Circuit Court of Appeals has jurisdiction over challenges to Council decision-making. Three petitions for review of the Strategy for Salmon were filed with the Ninth Circuit. One was filed by the Northwest Resource Information Center, Trout Unlimited, the Oregon Natural Resources Council, Idaho Steelhead and Salmon Unlimited, and The Wilderness Society, represented by the Sierra Club Legal Defense Fund. The second was filed by the Yakama Indian Nation. The third was filed by a group of aluminum companies and other industrial customers of the Bonneville Power Administration. After the petitions had been filed, 15 to 20 additional parties intervened, including Oregon Trout, the United States government, a number of utilities and the State of Idaho.
On September 9, 1994, the Court ruled that the Council had not adequately explained its reasons for rejecting recommendations to amend the program because the Council’s findings on the recommendations were put in a separate document, rather than in the fish and wildlife program itself as required by the Northwest Power Act. The Act directs the Council to include its findings “as part of the program.” The Court also held that the Council’s findings in the first phase of the amendment process were voided by findings in the second phase.
While the Court’s decision was limited to these procedural matters, the opinion offered extensive interpretations (called “dicta” because they are not strictly binding) of the Northwest Power Act and the Council’s responsibilities regarding program amendments. Some of the dicta advised the Council to give a “high degree of deference” to the fish and wildlife agencies’ and Indian tribes’ recommendations and expertise. The agencies and tribes strongly favored drawdowns of the lower Snake River dams as a strategy to improve salmon and steelhead survival. The Court said the Council’s discretion to reject the recommendations of agencies and tribes is narrow.
The Court remanded the Strategy for Salmon to the Council to develop new findings. The Council revised the findings and, in December 1994, amended the fish and wildlife program and the findings. This time, there was no court challenge after the approval, but there was a political challenge before it. The incoming Governor of Idaho, Republican Phil Batt, a drawdown opponent, asked the Council in November to delay its vote until January 1995 so that his two appointees to the Council could participate. That would have resulted in a 4-4 vote, if the other members didn’t change their positions, and under the Council’s bylaws that would have been a defeat. Also, seven of the eight United States senators from the four Northwest states wrote to the Council urging that the vote be delayed, but the letter arrived during the ex-parte period and legally could not be considered by the Council.
The Council voted 6-2 in favor of the program, with Idaho’s two Democratic appointees joining the majority — their last votes on the Council (one had been a Council member for less than a month). In January 1995, three new members joined the Council — Batt’s two appointees and a new member from Washington to replace one who resigned.
In 2000, the next time the Council completed a full revision of the program, the drawdown recommendation had been removed in favor of language that said, in essence, the drawdown decision is for the federal government under the Endangered Species Act and not for the Council. The Council committed, however, that if the government ever decides to proceed with Snake River drawdowns, the Council will consider the matter in its fish and wildlife planning.
The 2000 Program also set in motion an effort to write fish and wildlife assessments and management plans for tributary subbasins of the Columbia River in the United States. These 58 subbasin plans, completed in 2004, were amended into the Council’s and fish and wildlife program and today direct the recovery actions funded by Bonneville through the Council’s program. This is a planning innovation: fish and wildlife mitigation planning is being directed by locally developed plans that account for all impacts on fish and wildlife and address the needs of ESA-listed as well as non-listed fish populations. In October 2006, the Council completed its first complete set of project-funding recommendations to Bonneville based on the subbasin plans.
The role of science in planning
Fish and wildlife science informs fish and wildlife recovery planning but science, like economics, can be used to support opposing points of view. Who’s science is best and most objective? As a planner, whose science should be trusted?
In the Columbia River Basin, hundreds of scientific studies were conducted over time but whole-basin reviews were lacking until two important studies were conducted in the mid-1990s. These were particularly instrumental in subsequent planning decisions.
In November 1995, the National Research Council, an arm of the National Academy of Sciences, released it long-awaited report on Pacific Northwest salmon, a report commissioned by Congress nearly two years earlier. Entitled Upstream: Salmon and Society in the Pacific Northwest, the report was widely viewed as credible and authoritative because it was prepared by “the Supreme Court of Science,” in the words of U.S. Senator Mark Hatfield, (R-Oregon), who embraced the report and commented, “The verdict is in. The National Academy of Sciences — the Supreme Court of Science — says that it is time to implement an honest, science-based approach to salmon recovery.”
The report resulted from a request by Congress that the National Academy analyze salmon depletion in the Northwest and recommend solutions. According to the report, in order to achieve long-term protection for a diversity and abundance of salmon, two goals must be met: 1) salmon management must “recognize and protect the genetic diversity within each salmon species, and it must recognize and work with local breeding populations and their habitats;” and 2) “institutions must be able to operate at the scale of watersheds” because “the social structures and institutions that have been operating in the Pacific Northwest have proved incapable of ensuring a long-term future for salmon, in large part because they do not operate at the right time and space scales. Differences among watersheds mean that different approaches are likely to be appropriate and effective in different watersheds, even where the goals are the same.”
The report recommended that planning and operations of hatcheries be changed so that hatcheries assist in recovering wild salmon populations. The report criticized then-current fish harvest management for allowing too many fish to be caught and not enough allowed to return to spawn. The report recommended that assessments be conducted of each major watershed or river basin to determine causes of salmon mortality and ways of reducing it, and that salmon management be changed so that “the goal of management [is] to achieve a biologically sound escapement (instead of focusing on a ‘sustainable’ or permissible catch) for each metapopulation [group of related sub-populations] and an explicit adoption of time scales for management and planning that are commensurate with the multiyear scale of salmon life cycles.”
The Upstream report influenced an important piece of legislation in Congress the following summer. In July 1996, U.S. Senator Slade Gorton cited a particular recommendation in the report — the need for independent scientific review of fish and wildlife recovery projects before they are funded — as a rationale for the bill he sponsored to amend the Northwest Power Act. The amendment directed the Power and Conservation Council to create the 11-member Independent Scientific Review Panel, whose members are recommended by the National Academy of Sciences, to conduct an annual review of projects proposed for funding through the Council’s Columbia River Basin Fish and Wildlife Program. The Council is required to consider the Panel’s reviews before recommending projects to Bonneville for funding.
While the Upstream report led to a change in federal law, another report led to policy changes in the Council’s program. In September, 1996, following two years of work, a panel of nine independent scientists, the Independent Scientific Group, issued a lengthy review of the Council’s program. The Council commissioned the review and asked the National Academy of Sciences to recommend the scientists who conducted it.
The review took issue with historic fish and wildlife recovery practices and recommended a new guiding philosophy, one based on an ecosystem perspective. The review, entitled Return to the River: Restoration of Salmonid Fishes in the Columbia River System, incorporated a number of contemporary ecological concepts that eventually would find their way into fish and wildlife recovery efforts — the Council’s and others’.
The scientists proposed a paradigm shift in thinking about salmon recovery, from the dominant paradigm that “economically desirable fish populations can be managed in isolation from other components of the ecosystem. . . [and] that technological solutions can be devised for each ecosystem alteration,” to a new paradigm: that “technology must work with the natural physical and biological processes of the salmonid-bearing ecosystem rather than attempting to circumvent it.”
The Council applied principles from the Upstream and Return to the River reports in amending its program in a process that took several years and culminated in a series of amendments in 2000 (main body of the program), 2003 (recommendations regarding the operation of Columbia and Snake river mainstem dams), and 2004-05 (subbasin plans). The Council adopted an ecosystem management focus for its program and decided implementation would be guided by subbasin plans. These are locally developed management plans — similar to the concept proposed in the Upstream report — that recognize the unique species, environmental conditions and challenges to fish and wildlife recovery in each tributary subbasin and tie together fish production, habitat restoration, harvest and research activities. The focus no longer is on engineering solutions, but on restoring ecosystems through the guidance of locally developed plans.
In 2007 the Council began a new amendment process that is scheduled to culminate in December 2008.