The United States District Court for the District of Oregon issued a decision (pdf) invalidating the National Marine Fisheries Service's (NMFS) 2008 and 2010 biological opinions for operation of the Federal Columbia River Power System (FCRPS) by the Army Corps of Engineers and Bureau of Reclamation after the parties to the litigation challenging those decisions filed cross-motions for summary judgment. The court held that NMFS improperly made a no jeopardy determination with respect to certain listed salmonids on the basis of unidentified habitat mitigation measures.
The FCRPS is comprised of 14 sets of dams and associated reservoirs, and the biological opinions covered operation of the facilities through 2018. The 2008 biological opinion included a no jeopardy determination based, in part, on agreements with a number of entities including certain tribes and states. In response to concerns raised by the court, NMFS issued an adaptive management implementation plan in 2009 and then issued a supplemental biological opinion (pdf) in 2010 incorporating that plan. Plaintiffs National Wildlife Federation and the State of Oregon filed lawsuits challenging the 2008 and 2010 biological opinions.
In reviewing the parties' positions, the court noted that NMFS identified specific habitat mitigation measures through 2013 as the basis for its no jeopardy determination, but NMFS did not identify specific and verifiable mitigation plans beyond 2013. For this reason, the court held that NMFS "improperly relies on habitat mitigation measures that are neither reasonably specific nor reasonably certain to occur, and in some cases not even identified." Slip Op. at 11. The court acknowledged federal defendants' argument that future habitat mitigation actions are certain to occur because the federal agencies committed to achieving specific, numerical improvements in habitat quality and survival. Nonetheless, the court stated that the habitat mitigation program is "plagued with uncertainty." Id. at 13. The court went on to conclude that "Federal defendants simply cannot substitute their 'commitment' to survival improvement for specific actions they have evaluated and determined will provide the necessary biological response." Id. at 16.
The court did not reach other claims advanced by plaintiffs including the arguments that NMFS used a flawed jeopardy standard in the biological opinions and failed to use the best available scientific data in measuring the effects of the action and the benefits of their proposed reasonable and prudent alternative on the listed species.
Paul Weiland is chair of Nossaman’s Environment & Land Use Group. He focuses his practice on litigation, permitting, and compliance counseling. Paul’s clients include public agencies, publicly regulated utilities, private ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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