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How the Courts Are Keeping Salmon Alive

July 23, 2021
By
Todd True Senior Attorney

The fish are in crisis. We've asked a court to order critical stop-gap measures to keep them from going extinct.

With endangered salmon and steelhead in the Columbia and Snake rivers staring down the barrel of extinction, Earthjustice went to court in July 2021 on behalf of 11 fishing and conservation groups seeking an order to afford these fish a better chance of survival.

Salmon and steelhead must navigate a series of eight dams as they travel from the cold, mountain streams of their birth out to the Pacific Ocean, and then back again — 16 dam passages in total over the perilous journey that can be as long as 1,600 miles round-trip. Fish used to make this journey in one direction over a period of days. Now, impeded by the dams and the stagnant reservoirs they create, it takes weeks — if they make it at all — exposing the fish to heat, predators, and disease, not to mention the risks associated with just getting past each dam.

We asked the court to order federal agencies that operate the dams to spill more water over them because the Columbia and lower Snake Rivers are migratory superhighways for these fish. (In lawyer-speak, we “filed a motion for a preliminary injunction.”)

Increased spill during certain times of the year helps flush baby salmon past the dams in their journey to the ocean. We are also asking the Court to require lower reservoir levels above each dam, which can also speed up seaward migration. The state of Oregon filed a similar motion with the court, and both our request and Oregon’s have the support of the Nez Perce Tribe.

What is a preliminary injunction?

An injunction is a request to a court to order a defendant to take action to prevent irreparable harm while a lawsuit is pending. It is one of the most powerful tools available to groups that are interested in protecting the environment from illegal government action. In this case, the conservation and fishing groups, the state of Oregon, and the Nez Perce Tribe are all in court challenging the Trump administration’s plan for operating the federal hydroelectric dams on the Columbia and Snake rivers. This plan hews closely to prior plans the Court has rejected as illegal — plans that will likely drive salmon to extinction. The plaintiff groups are using this motion for injunctive relief to seek short-term aid for the fish while the case gets argued and decided.

What does the request for more spill mean for the river and for the salmon?

With the current dams in place, spill is one of two stop-gap actions that can improve salmon survival immediately. Spill is a proven measure that helps baby salmon avoid going through the dams’ powerhouse system, and instead allows them to pass over the top of the dams. The more spill that is provided in spring and summer when baby salmon are migrating down river, the higher their survival will be, up to a point. Too much spill can hurt the fish, but there are measures in place — called “gas caps” — that limit spill to an amount that is safe for salmon.

How does lowering the reservoirs help?

Lowering the reservoirs moves water through them faster, helping salmon migrate downstream faster. A quicker migration means endangered juvenile salmon are less susceptible to predators and disease in the slack water above each dam. A lower reservoir also has a smaller surface area, so it heats up less. Water that is too hot kills salmon.

Are more spill and lower reservoirs enough to save these fish over the long term?

No. These are the best available stop-gap measures to improve salmon and steelhead survival until we make major structural changes to the federal dams, the most critical and urgent of which is to bypass the four dams on the lower Snake River and restore a key 140-mile river segment to a free-flowing condition. Since 2005, we have filed, and the court has granted, a series of injunctions that have steadily increased the amount of spill. Salmon scientists credit these actions as a key factor in preventing salmon and steelhead extinction so far. But with climate change worsening and other pressures on the fish, the single best thing we can do now is restore a free-flowing lower Snake River.

Does spill affect the hydropower production?

Yes. More spill means less water to turn the turbines, because instead of going through the dam powerhouse and producing electricity, the water goes over the dam to flush baby salmon towards the ocean, and this reduces the amount of electricity the dams generate. However, there is no indication it will reduce power generation to the point of affecting the reliability of our regional power supply.

Nancy Hirsh, executive director of the NW Energy Coalition, says, “Energy system impacts from granting this injunctive relief can be addressed, in part, with new hybrid renewable energy resources like wind and solar coupled with storage, flexible demand, and energy efficiency. In addition, the West has an excess of solar power during the spring and summer months, and we see a clear opportunity for Bonneville Power Administration to utilize these resources as part of its salmon recovery strategy.”

Is there spill happening now?

Yes, but it is not a result of the latest motion for an injunction. The spill that is happening now is an outgrowth of past legal actions and a three-year agreement forged in 2018 between Bonneville Power Administration, the Army Corps of Engineers, the states of Oregon and Washington, and the Nez Perce Tribe. The agreement was to continue so-called “flexible spill” and suspend legal actions during this time. The groups we represent supported this agreement with the expectation that the federal agencies that own and operate the dams would undertake a fair and science-based review of the Columbia-Snake Hydrosystems Operations plan and comply with the law.

What plan did the Trump administration approve?

Hundreds of thousands of people in the Pacific Northwest — including tribes, scientists, energy experts, and fishing businesses — told the federal government to remove the four dams that are causing the most harm to the fish and to our communities. But the Trump administration did not listen and rubber-stamped a plan that continues past dam operations largely unchanged and yet again fails to take the legally required actions necessary to protect salmon and steelhead. So we had no choice but to return to court once more.

Liz Hamilton, executive director of the Northwest Sportfishing Industry Association, spoke about the stakes for people of the region: “Covid has proven that people in this region harbor a deep need to get outdoors and feel safe while doing so. We’ve seen more families out on the rivers sportfishing than ever before. When we go out and fish, we’re expressing hope. If we lose the salmon, then we lose that hope. This federal plan is dangerous and does a grave disservice to the people who love to fish these rivers, and we could not let it go unchallenged.”

What law is this plan breaking?

The main law with which the federal government is failing to comply is the Endangered Species Act. The Endangered Species Act tells the government that it cannot take action that would jeopardize the future survival and recovery of a species that is listed, since these species are already on a path to extinction that must be reversed. Snake River salmon and steelhead have been listed as threatened or endangered since the mid-1990s and the government has failed repeatedly to comply with the law.

Why go to court? Isn’t there an agreement underway in the region?

The courts have been the main bulwark against illegal dam operation plans over the last 30 years, plans that might well have driven salmon to extinction if they had not been rejected and if there had been no court-ordered injunctions. The courts are playing that role because the federal agencies have written one illegal plan after another, and neither Congress nor the Biden administration have yet provided leadership to solve the problem.

Now there are proposals on the table to put a comprehensive solution in place, one that restores the river and invests in communities so we can all move forward together. Once such framework has been offered by Idaho Rep. Mike Simpson, along with support from Oregon Rep. Earl Blumenauer. There also are calls from other leaders, including Gov. Kate Brown of Oregon and dozens of Northwest Tribes, to remove the four lower Snake River dams. More of our elected leaders, especially the four senators from Washington and Oregon, Patty Murray, Maria Cantwell, Ron Wyden, and Jeff Merkley, must engage and work together swiftly if we want to stop this extinction crisis. In the meantime, these legal actions can provide a life-line for endangered salmon and steelhead in the Columbia and Snake Rivers.

What is the timeline of the court case and the spill schedule?

  • January 2021 - We filed the case challenging the Trump administration’s unlawful plan
  • July 16, 2021 - We filed our preliminary injunction motion
  • Early 2022 - We anticipate the court will decide the injunction motions in early 2022
  • Spring 2022 - If granted, our request for spill at all eight dams and the reservoirs on the lower Snake River would start when baby salmon begin migrating to the ocean in large numbers next spring
  • September 2022 - We have also asked the court to require the federal agencies to produce a plan by this date to operate the four reservoirs on the Columbia River at lower elevations
  • Spring 2023 - If our request is approved, the Columbia River reservoir would operate at lower levels in the spring beginning in 2023

Things seem dire. Is it too late for the salmon?

No! But some groups that benefit economically from current dam operations would have you believe otherwise. This is a cynical outlook from the same groups that have fought for and supported more than two decades of illegal dam operations, which are a significant factor in this extinction crisis. Climate change and intense heat waves are exacerbating harsh conditions for the fish, but river restoration is a proven and tremendously effective method to save them. Their natural resilience these fish have developed over thousands of years remains and can help them come back if we only give them a reasonable chance by restoring the lower Snake River. Even the Trump administration plan we are challenging admits as much by finding that river restoration with dam removal will provide the biggest survival benefit to these fish.

What can I do to help?

Our leaders in the Senate and Congress need to hear from their constituents that we don’t want to watch these fish go extinct. We need Northwest leaders like senators Murray and Cantwell in Washington and Wyden and Merkeley in Oregon to support a comprehensive solution that removes Snake River dams and invests in clean energy and river communities, and respects the treaties and other rights of the tribes impacted by the loss of salmon. So they need to hear from you.

The Lower Granite Dam is one of the four Lower Snake River dams Earthjustice is fighting to remove.

The Lower Granite Dam is one of the four Lower Snake River dams Earthjustice is fighting to remove.

Chris Jordan-Bloch / Earthjustice