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Oregon Threatens to Sue Feds Over Fish-hydro Stance by News Sources Bend.com, January 14, 2005

Flap centers on whether to focus on survival or recovery

SALEM -- Gov. Ted Kulongoski announced Friday that Oregon has officially notified the federal government of the state’s intent to sue over the Biological Opinion for the Federal Columbia River Power System.

In a letter sent by Attorney General Hardy Myers, Oregon put the federal government on notice that the state will file suit against the Bureau of Reclamation, the U.S. Army Corps of Engineers and the Bonneville Power Administration if they do not change their current policy within 60 days.

The notice, which was sent to U.S. Secretary of the Interior Gale Norton as well the Secretaries of Commerce and Energy, asserts that under the Endangered Species Act (ESA), a federal agency must not take actions that will jeopardize the continued existence of an endangered or threatened species.

The requirement applies to the operation of the federal Columbia River dams and their effect on protected salmon and steelhead. To ensure compliance with the ESA, Bonneville Power Administration (BPA), the Army Corps of Engineers and the Bureau of Reclamation must consult with the federal National Oceanic and Atmospheric Administration (NOAA) regarding dam operations and obtain a biological opinion confirming that their actions will not jeopardize salmon and steelhead.

In 2000, NOAA issued a biological opinion that concluded federal dam operations would not jeopardize listed salmon and steelhead. The opinion was subsequently invalidated by the federal court because it violated the ESA by improperly relying on future actions to mitigate harm to endangered species caused by the dams. The court required NOAA to issue a new opinion in compliance with the ESA.

NOAA has now issued its 2004 biological opinion in which it applies a standard never before applied by the United States to evaluate the lawfulness of federal dam operations, the governor claimed.

Instead of ensuring that listed salmon and steelhead will not be driven extinct by the proposed operations, the new biological opinion concludes that the proposed operations are lawful if those operations will not further accelerate the trend to extinction.

Oregon disagrees with the new federal approach to the ESA, and is gravely concerned that the new approach abandons any effort to achieve recovery of Columbia and Snake River salmon and steelhead populations.

“The best interests of Oregon and the region will be served by recovering wild salmon and steelhead in the Columbia basin as quickly as possible. I believe that we can create a plan to do that without the need to remove dams,” said the governor. “If we are successful in this effort, we should be able to enhance the economic benefits provided both by healthy fish populations and by low-cost power.”

In addition to filing notice with federal officials, staff from the Governor’s office continues to meet with representatives of the federal agencies responsible for the operation of the FCRPS. The state is seeking a plan that rebuilds naturally spawning populations of wild salmon and steelhead in the Columbia basin while maintaining the economic benefits of the hydroelectric system.

“This letter puts the federal government on notice that if they will not reach a reasonable solution through negotiation, I intend to use this legal remedy to change survival back to recovery,” said the governor.