Avoiding Dam Breaching Through Offsite Mitigation: NMFS's 2000 Biological Opinion on Columbia Basin Hydroelectric Operations

Abstract:     
This article analyzes the National Marine Fisheries Service's (NMFS's) 2000 biological opinion on Columbia Basin hydroelectric operations. This opinion, which will govern operations until 2005, was extremely controversial when issued because it basically authorized a continuation of existing dam operations instead of recommending the breaching of the four Lower Snake River dams, which several scientific studies concluded was necessary to rescue the most imperiled salmon runs from extinction.

To avoid the politically controversial position of recommending dam breaching, the 2000 biological opinion called for numerous "offsite" mitigation measures involving habitat restoration, hatchery operations, and harvest management. Many of these measures were merely called for studies without promising action; others were directed at agencies that are not hydropower managers, and therefore, not bound by the biological opinion. Because NMFS admitted that, without these offsite measures, hydroelectric operations would jeopardize the continued existence of listed salmon, if the offsite measures conflict with the Endangered Species Act, the 2000 biological opinion this article claims the opinion is unlawful.

We examine several arguments raised in pending litigation challenging the opinion, concluding that there are good reasons why the court should strike it down. If the opinion is allowed to stand, the authors predict that Snake River salmon, the most imperiled of the species, will continue to slide toward extinction.

Keywords: environmental law, endangered species, hydropower, fisheries

JEL Classifications: K32, Q22

Accepted Paper Series