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Columbia River Biological Opinion Back to the Drawing Board… Again

September 8, 2011

In August, a federal district judge in Oregon determined that a biological opinion evaluating impacts to endangered salmon from operation of the Federal Columbia River Power System (FCRPS) was inadequate. The biological opinion was issued by NOAA Fisheries (formerly known as National Marine Fisheries Service, or “NMFS”). It concluded that FCRPS operations are not likely to jeopardize the continued existence of any listed fish species, if certain mitigation measures are implemented. Judge Redden found that NOAA Fisheries had failed to sufficiently identify concrete mitigation actions for some of the years covered by the biological opinion.

This opinion is the latest in lengthy litigation over the impacts of the Columbia River hydropower system on endangered salmon. Twice before, Judge Redden has remanded biological opinions for amendment. In 2003, he rejected a 2000 biological opinion on the grounds that the proposed mitigation actions and long-term comprehensive monitoring program were not reasonably certain to occur. In 2005, he remanded a new biological opinion for further work. The Ninth Circuit affirmed.

Several years later, NOAA Fisheries issued the 2008/2010 Biological Opinion—which is the biological opinion at issue in this most recent decision. To avoid jeopardizing the continued existence of the endangered species, the biological opinion relied on mitigation measures that would require specific habitat quality improvements for the years 2010 to 2018. However, because of the lack of commitment for specific habitat improvement projects, the court found that NOAA Fisheries “improperly relies on habitat mitigation measures that are neither reasonably specific nor reasonably certain to occur, and in some cases not even identified.”

The court opted to remand the 2008/2010 Biological Opinion back to NOAA Fisheries for further work on the non-specific mitigation actions, while allowing the existing biological opinion to remain in place through 2013. The court ordered a new biological opinion be issued by January 1, 2014.

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