Table of Contents
I.     Introduction
II.    Recent Litigation Impacting Columbia-Snake River Salmon Recovery
III.   NMFS Proposed Recovery Plan for Snake River Salmon
       A.  Background
       B.  Main Elements of Recovery Plan--Operational Tasks for Recovery
           1.  Tributary Ecosystem
           2.  Mainstem and Estuarine Ecosystem Recovery Tasks
           3.  Harvest Management Recovery Tools
           4.  Artificial Propagation
           5.  Enforcement
IV.    NPPC 1994 Columbia River Basin Fish and Wildlife Program
       A.  Introduction
       B.  Recommendations for Salmon Recovery
           1.  Juvenile Salmon Migration
           2.  Adult Salmon Migration
           3.  Coordinated Salmon Production and Habitat
           4.  Salmon Harvest
           5.  Changes in the NPPC
V.     NMFS Biological Opinion on the Reinitiation of Consultation on 1994-1998
       Operation of the Federal Columbia River Power System and Juvenile
       Transportation Program
VI.    Analysis of Ecosystem Management and Recovery Plan Guidelines
VII.   Discussion
       A.  Adaptive Management and Biodiversity Conservation Strategies
       B.  Implementation
VIII.  Conclusion
REFERENCES AND BIBLIOGRAPHY
ABBREVIATIONS AND ACRONYMS

In the past year there have been major developments stimulated by federal court decisions in
the plans of federal, regional, state, tribal, and nongovernmental entities for the recovery of
weak Columbia-Snake River salmon stocks, especially the three Snake River species listed as
endangered under the federal Endangered Species Act (ESA).

In Idaho Dept. of Fish &;Game v. National Marine Fisheries Service, 850 F. Supp. 886 (D.
Oregon 1994), federal district Judge Marsh held that the National Marine Fisheries Service's
(NMFS's) finding of "no jeopardy" to those listed species from power operations on the
Columbia River was arbitrary and capricious. Marsh found the effort to save the three listed
salmon species "seriously, 'significantly,' flawed because it is too heavily geared towards a
status quo that has allowed all forms of river activity to proceed in a deficit situation--that is,
relatively small steps, minor improvements and adjustments--when the situation literally cries
out for an overhaul." Marsh continued, "[W]here stability ends and recovery begins is a crucial
question which must be fully explored by the federal defendants in examining what changes can
be made to river operations to avoid what many commentators believe will be the inevitable
extinction of these species." Since Judge Marsh's 1994 opinion, federal agencies have returned to
the table with revised proposals for managing the Columbia River in such a way that will not
jeopardize the continued existence of salmon.

Issue 41 of the Ocean and Coastal Law Memo, Legal Aspects of Columbia-Snake River Salmon
Recovery, provided a detailed analysis of the major federal statutes applicable to salmon
recovery, including the Northwest Power Act (NPA) and the ESA (Hildreth and Thompson
1994). In December 1994, the U.S. Fish and Wildlife Service proposed to permanently
reclassify the Snake River spring/summer chinook and the Snake River fall chinook from
threatened to endangered along with the Snake River sockeye based on projections for further
decline (59 Fed. Reg. 66784 (1994)). NMFS had previously issued an emergency rule
reclassifying these Snake River chinook as endangered (59 Fed. Reg. 42529 (1994)). However,
NMFS turned down a petition to list the mid-Columbia River summer chinook as an endangered
species (59 Fed. Reg. 54840 (1994)).

This memo will provide an update of the litigation impacting Columbia-Snake River salmon
recovery, as well as review the major provisions of the most recent agency attempts to protect
the salmon. These new documents include the Northwest Power Planning Council's (NPPC's)
1994 Columbia River Basin Fish and Wildlife Program, the NMFS 1995 Proposed Recovery Plan
for Snake River Salmon, and the NMFS 1995 Biological Opinion on the Reinitiation of
Consultation on 1994-1988 Operation of the Federal Columbia River Power System and Juvenile
Transportation Program.

Nongovernmental salmon strategies have also been proposed but will not be addressed in depth
by this memo. For example, an Environmental Defense Fund analysis shows that "dry year
leasing and basin-wide fallowing to acquire water for transfer to river flow enhancement are the
two most cost-effective salmon recovery projects under a wide range of analytic assumptions"
(Diamant and Willey 1995). The Confederated Tribes of the Umatilla Indian Reservation has
proposed a salmon restoration policy "that would place 'stringent new controls' on irrigation
water for surplus crops. The plan also calls for sharply increased river flows, an end to salmon
barging and a freeze on issuing new water rights" (Greenwire, March 21, 1995). The Columbia
River Inter-Tribal Fish Commission (CRITFC), representing four tribes with treaty fishing rights
on the Columbia River, is developing a plan which emphasizes "sustainability for future
generations." The recommendations of the Columbia River Treaty Tribes include addressing
passage, habitat, harvest, and production in a watershed approach. Specifically, the passage
recommendations include providing for "river flows that are similar in size and duration to
historic flows" through "permanent drawdowns to spillway created at the John Day, McNary,
Wanapum, and Snake River dams." Habitat recommendations include protecting "all remaining
fish habitat from further degradation" and protecting "roadless and wilderness areas until the
majority of degraded habitats improve." Production recommendations include refocusing
hatchery programs and protecting genetic diversity (CRITFC 1995). Issue 41 of the Ocean and
Coastal Law Memo discusses the impact of both the NPA and the ESA on treaty fishing rights
in the Columbia River.

II. Recent Litigation Impacting Columbia-Snake River Salmon Recovery

Six months after Judge Marsh sent NMFS back to reconsider its biological opinion on Columbia
River operations, Judge Tang found the NPPC's 1992 Strategy for Salmon to be arbitrary and
capricious with respect to the mandates under the NPA (Northwest Resource Information
Center v. Northwest Power Planning Council, 35 F.3d 1371 (9th Cir. 1994)). Judge Tang found
that the NPPC "failed to explain a statutory basis for its rejection of recommendations of
fishery managers and it has failed to evaluate proposed program measures against sound
biological objectives." Echoing Judge Marsh's opinion, Judge Tang also found that "the Council's
approach seems largely to have been from the premise that only small steps are possible, in light
of entrenched river user claims of economic hardship. Rather than asserting its role as a regional
leader, the Council has assumed the role of a consensus builder, sometimes sacrificing the
[NPA's] fish and wildlife goals for what is, in essence, the lowest common denominator
acceptable to power interests and [Direct Service Industries]." Rejection of both the NMFS 1993
Biological Opinion and the NPPC's 1992 Strategy for Salmon sent a strong signal to federal
agencies that maintaining the status quo was not an acceptable salmon recovery strategy.

Several other court cases enjoined federally permitted activities on federal lands in Oregon and
Idaho pending U.S. Forest Service (USFS) consultation with NMFS under section 7(a)(2) of the
ESA. In Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied, No. 94-
1332 (April 24, 1995), the 9th Circuit held that future as well as ongoing activities in the
Wallowa-Whitman and Umatilla National Forests in Oregon must stop pending section 7(a)(2)
consultation. The 9th Circuit upheld part of an earlier district court opinion (854 F. Supp. 713
(D. Oregon 1993)) enjoining new activities, but it reversed the district court's failure to enjoin
ongoing activities and remanded the decision to the district court "to reconsider whether the
ongoing and announced timber, range and road projects are irreversible and irretrievable
commitments of resources which must be enjoined during consultation. . . ." An appeal of the
district court's injunction issued on remand is pending before the 9th Circuit. In the meantime,
the injunction on timber operations in Oregon's Wallowa-Whitman and Umatilla National
Forests was recently lifted.

Shortly after the 9th Circuit opinion, a federal district court in Idaho enjoined both ongoing and
new timber sales, range activities, mining activities, or road building projects in national forests
in Idaho pending ESA section 7(a)(2) consultation between the USFS and NMFS (Pacific Rivers
Council v. Thomas, 873 F. Supp. 365 (Idaho 1995)).

In other litigation, the 9th Circuit upheld Judge Marsh's decision in Pacific Northwest Generating
Cooperative v. Brown denying standing to companies purchasing power from the Bonneville
Power Administration (BPA) to challenge the NMFS 1992 Biological Opinion with respect to
Columbia River power operations (822 F. Supp. 1479 (D. Oregon 1993), aff'd, 38 F.3d 1058
(9th Cir. 1994)). The 9th Circuit opinion found that the plaintiffs lacked constitutional
standing based on their failure to show a causal connection between the alleged economic injury
and the defendant's actions, and their failure to show that their injury is redressable. The 9th
Circuit did find, however, that the plaintiffs satisfied the "prudential 'zone of interest'" standing
limitations established by Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992): "[T]hey are
asserting their own rights; they are not litigating a merely abstract question; and what they
complain of falls within the zone of interest protected by the Endangered Species Act."

The 9th Circuit also upheld Judge Marsh's opinion with respect to the incidental take of
endangered salmon that occurs in commercial salmon fisheries. The ESA permits the taking of
endangered species "incidental" to a permitted activity (16 U.S.C. § 1536(b)(4)). The plaintiffs
had argued that "purposeful fishing which cannot distinguish among the salmon taken should
not be characterized as merely 'incidental' taking of the endangered species." Judge Marsh
concluded, and the 9th Circuit affirmed, that permitting the "incidental" take of a few
endangered salmon during the course of commercial fishing was consistent with the ESA. The
9th Circuit also rejected the plaintiffs' claim that transporting and trading captured endangered
salmon after harvesting them along with nonendangered salmon violates the ESA's prohibition
on "trade or transportation of members of an endangered species" (16 U.S.C. § 1538(a)(1)).
The 9th Circuit accepted the defendant's argument that it would be impossible to enforce this
prohibition as to the few incidentally caught endangered salmon. "It was not the intention of
the [ESA] to ban all salmon fishing or to place upon the federal defendants an enforcement
burden that no one could accomplish."

In Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the 9th Circuit held that the
National Environmental Policy Act's environmental impact statement (EIS) process does not
apply to critical habitat designations under the ESA such as the extensive critical habitat
designated in the Columbia-Snake River Basin for the three endangered salmon species. Also, in
U.S. Dept. of Commerce v. FERC, 36 F.3d 893 (9th Cir. 1994), the 9th Circuit held that in
licensing and relicensing hydroelectric facilities under the Federal Power Act, the Federal Energy
Regulatory Commission's jurisdiction includes the facilities' impacts on the spawning of
anadromous fish.

III. NMFS Proposed Recovery Plan for Snake River Salmon

A. Background

In early March 1995, NMFS released its Proposed Recovery Plan for Snake River Salmon (NMFS
1995b). NMFS utilized an "adaptive" recovery strategy:

[I]t places higher priority on actions that are most likely to provide the most immediate benefits,
the greatest long-term benefits, and the best opportunity to identify those factors limiting
recovery. The strategy ensures that the recovery plan remains dynamic, allowing actions to be
added, deleted, or refined following an adaptive management approach based on evolving
scientific information and analysis. (Id. at I-9)

The Recovery Plan follows the general approach outlined in the NMFS Recovery Plan guidelines,
establishing priorities to tasks as follows:

Priority 1: An action required to help avoid extinction;
Priority 2: An action required to prevent significant decline in population numbers [and]
habitat quality, and help achieve rebuilding;
Priority 3: Actions required to help ensure sustained recovery. (NMFS 1995b, at I 10)

Issue 41 of the Ocean and Coastal Law Memo provides a more thorough discussion of the
NMFS Recovery Plan guidelines. The Recovery Plan states a commitment to the NPPC "to
coordinate implementation and planning efforts." The Plan also includes a "Statement of
Federal Policy Concerning the ESA and Indian Treaty Fishing Rights in the Pacific Northwest."
The Recovery Plan states:

In administering the ESA with respect to Indian treaty fishing in the Pacific Northwest all
agencies of the Federal government should be guided by conservation necessity principles in
addressing all sources of salmon mortality. In accordance with this policy, the Federal
Government will not impose restrictions on the exercise of treaty-reserved and other Federally
recognized Indian fishing rights which result in the incidental take of listed Snake River salmon
stocks unless:

1. the restrictions are reasonable and necessary for the conservation of the fishery resource;
2. the restrictions are the least restrictive measures available to achieve the conservation
purpose;
3. the restrictions, either as stated or as applied, do not discriminate against treaty activities;
4. the restrictions are necessary because the conservation purpose cannot be achieved through
reasonable regulation of non-treaty activities; and
5. the restrictions are necessary because voluntary tribal conservation measures are not
adequate to achieve the conservation purpose. (NMFS 1995b, at I-13 to I-14)

The main section of the Recovery Plan addresses "operational tasks for recovery" and focuses
on tasks for the tributary ecosystem, mainstem habitat, harvest management, artificial
propagation, and enforcement. Implementation of the Recovery Plan will be overseen by a
Salmon Recovery Implementation Team. The Recovery Plan also utilizes two federal agency
coordinating structures established by a Memorandum of Agreement (MOA) between the
Director of the Council of Environmental Policy, the Secretaries of Commerce, Interior, Army,
Energy, and Agriculture, and the Administrator of the Environmental Protection Agency (EPA).
The MOA established a Secretary-level Pacific Salmon Task Force, as well as a regional Pacific
Salmon Coordinating Committee. The Implementing Team will monitor the recovery efforts
coordinated by the federal agencies (NMFS 1995b, at III-6). In addition, the Recovery Plan calls
for the creation of a Scientific Advisory Panel, as well as other committees and work groups.

The Recovery Plan also establishes "delisting criteria" to "recover naturally reproducing
populations of [listed species of salmon] to levels where protections under the ESA are
unnecessary." NMFS describes its approach as a "holistic life cycle approach," and one that
involves adaptive management, with flexibility to take new information into consideration.
General delisting guidelines include improved spawning and rearing habitat, permanent and
immediate improvement of migration conditions for juvenile and adult salmon, and controlling
ocean and river harvest impacts on listed stocks. Specific delisting criteria include achieving a
natural cohort replacement rate greater than one (indicating that the population is self-
sustaining) and achieving numerical escapement goals set for each listed species (NMFS 1995b,
at IV-1 to IV-4).

B. Main Elements of Recovery Plan--Operational Tasks for Recovery

1. Tributary Ecosystem

The Recovery Plan takes an ecosystem or watershed approach to managing tributary salmon
habitat that incorporates recommendations of the Forest Ecosystem Management Assessment
Team and recommends changes to the objectives established by PACFISH, the Departments of
Agriculture and Interior's "Interim Strategy for Managing Anadromous Fish Producing
Watersheds on Federal Lands in Eastern Oregon and Washington, Idaho, and Portions of
California" (60 Fed. Reg. 11655 (1995)). The Recovery Plan states "[however], the [USFS Land
and Resource Management Plans] and the [Bureau of Land Management (BLM) Land Use
Plans], even including [previous] PACFISH adjustments, do not identify a network of well-
distributed watersheds containing high quality and readily restorable spawning and rearing
habitats. Nor do they provide adequate direction in minimizing impacts on these habitats,
prioritizing restoration, planning activities and conservation strategies based on landscape-
scale analysis, or continued monitoring. The NMFS short-term strategy is designed to address
these shortcomings" (NMFS 1995b, at V-1-16). The Recovery Plan establishes an "anti-
degradation" standard for all watersheds and establishes specific riparian management
objectives (RMOs) for federal land management activities (Id. at V-1-18).

Following the "three level priority approach" established by the NMFS Recovery Plan guidelines,
specific biological objectives for avoiding extinction include (1) preserving remaining listed
salmon populations by identifying and protecting important habitat and (2) reducing loss of
listed species at water withdrawal sites. Biological objectives to begin recovery include (1)
restoring habitat, (2) providing adequate instream flows, and (3) improving fish passage at
barriers. Biological objectives to sustain recovery include (1) reducing losses of listed species
associated with poor water quality and (2) reducing impacts on salmon from recreational
activities.

The Plan calls for a Habitat Committee to coordinate with current efforts by the USFS and the
BLM to develop an EIS for the Columbia River Basin, as well as with the BPA and the NPPC to
identify historical salmon habitat. The report will include an evaluation of existing habitat
quality and make recommendations for improvements. The efforts will be coordinated using a
geographical information system database. In order to restore and protect habitat, NMFS
recommends a "comprehensive short-term strategy for Federal lands," which includes

1) set[ting] ecological goals for aquatic/riparian area conditions;
2) set[ting] specific riparian management objectives (RMOs);
3) establish[ing] riparian habitat conservation areas (RHCAs);
4) protect[ing] RHCAs from further degradation in any watershed containing designated
critical habitat;
5) provid[ing] for a network of well-distributed watersheds containing high quality spawning
and rearing habitat and having the best potential for restoration (Priority Watersheds);
6) manag[ing] Priority Watersheds in a manner that minimizes risk to existing physical and
ecological conditions;
7) set[ting] restoration priorities in Priority Watersheds to help ensure that the next generation
of high quality habitat evolves and that high quality habitats expand and reconnect;
8) requir[ing] that land management be planned only after analysis of the best available
information on watershed processes and functions is complete;
9) develop[ing] baseline information and monitor[ing] the effects of land management to
maintain consistency with implementation requirements and to achieve Ecological Goals and
RMOs; and
10) begin[ning] gathering information for developing options for long-term, ecosystem-based
recovery strategies. (NMFS 1995b, at V-1-15 to V-1-16)

NMFS specifically recommended several changes to PACFISH for priority watersheds. NMFS
added an RMO for substrate sediment which limits stream surface fine sediment to less than 20
percent in spawning habitat. NMFS also added specific recommendations for cobble
embeddedness, width/depth ratio, and streambank stability.

The enforceability of the RMOs is not clear. NMFS states that RMOs are not intended to be
management requirements, but general "benchmark[s] that the USFS and BLM managers should
aim toward until such time as watershed analysis supports establishment of more specific
objectives" (NMFS 1995b, at V-1-24).

2. Mainstem and Estuarine Ecosystem Recovery Tasks

Arguably the most controversial elements of recovery are those measures which affect mainstem
power operations. The Plan emphasizes that mainstem efforts follow the adaptive
management and ecosystem approaches. Alluding to litigation involving both deference to
agency opinions as well as criticism that NMFS has maintained the status quo in the past, the
Recovery Plan states: "NMFS must use its professional judgment, based on the best information
available, to recommend measures that will benefit listed salmon. Once implemented, those
measures must be monitored and evaluated to the extent possible to determine whether they
provide a benefit. There is no implicit assumption in this Recovery Plan that the status quo is
acceptable" (NMFS 1995b, at V-2-9).

Steps to avoid extinction include reducing loss of juvenile fish by (1) flow augmentation and
improved water management, (2) increased spill at mainstem dams, (3) structural and
operational improvements of bypass facilities and dams, (4) improving transportation, and (5)
using reservoir drawdowns. Steps to avoid extinction also include (6) reducing loss of adult
fish by improving structural and operational passage facilities at dams and (7) reducing listed
species loss at water withdrawal sites.

Steps to sustain recovery include (1) reducing loss of listed species to predators and
competitors, (2) reducing the loss of listed fish resulting from elimination and disruption of
shallow water habitat, (3) reducing loss of listed species associated with poor water quality,
and (4) expanding the knowledge of salmonid biological requirements to better manage for the
recovery of listed Snake River salmon.

Recognizing that flow levels that approach natural river conditions will likely provide the best
chance for recovery, NMFS includes in its flow augmentation approach increased flows during
the spring and summer salmon migration. Flow augmentation will be achieved through a
combination of changing reservoir operations so that water will be available when needed for
salmon migration and managing water "through a real-time, flexible in season management
process." NMFS has established target flows for summer and spring at the Snake River's Lower
Granite Dam and the Columbia River's McNary Dam. In-season management relies on the
Army Corps of Engineers (COE), the Bureau of Reclamation (BOR), and the BPA to operate the
Federal Columbia River Power System (FCRPS) for optimal fish survival. This includes ensuring
that reservoirs are at flood control levels at the beginning of the migration season; recommending
that BOR secure additional water from Oregon and Idaho to increase flow of the upper Snake
River; and recommending that the BPA and COE negotiate with Canada to store additional
water in Canadian reservoirs to increase the likelihood that target flow levels can be met in the
Columbia River in low water years. NMFS also recommends that BOR identify unauthorized
water spreading activities and stop all instances of water spreading on Reclamation projects by
April 1996. The Plan also recommends study of the relationship between increased flow and
salmonid survival in the ocean. In particular, increased flow may impact the structure of the
Columbia River plume, which may play a critical role in juvenile salmon survival.

While recognizing the risk to smolts through elevated levels of dissolved gas (TDG) in their
bloodstreams, NMFS nonetheless recommends increased spill at mainstem dams. NMFS
recommends that the long-term exposure to TDG does not exceed 115 percent. This is above
the EPA's recommended limit of 110 percent but below the level of 120 percent recommended
by state and tribal entities. NMFS acknowledges that the spill program is still experimental and
that it requires more information about the TDG levels resulting from different levels of spill at
each dam and the impact of lethal and sublethal effects of TDG on fish. Because nitrogen levels
are regulated by the states under the federal Clean Water Act, spills require the approval of
Oregon and Washington. The Oregon Environmental Quality Commission has expressed
continuing concern about such water quality effects of spills requested by NMFS and hatchery
operators to aid downstream migrants.

The most controversial element of the mainstem changes is the recommendation for reservoir
drawdowns. Consistent with the NPPC's recommendations in the Columbia River Basin Fish
and Wildlife Program, NMFS recommends a drawdown of the John Day reservoir to increase
water velocities. The drawdown will be to a level within one foot of the minimum operating
pool, with continued study on the option to drawdown the reservoir to spillway crest--an
intermediate level which increases velocity and further decreases smolt travel time. A
drawdown to the natural river level would eliminate mortality associated with reservoir and
dam passage. An August 1994 Columbia River System Operation draft EIS released by the
BPA, COE, and BOR, concludes that salmon migrations would be helped most by such
drawdowns to near natural river levels. A final EIS is expected in 1995.

However, NMFS has not chosen to recommend the drawdown of Snake River reservoirs at this
time (NMFS 1995b, at V-2-57). This is a significant difference between the NMFS Recovery Plan
and the NPPC proposal, which recommends an immediate drawdown to near spillway crest of
the Lower Granite pool, followed by a Little Goose reservoir drawdown in 1999 if biologically
prudent. The NPPC strategy may lead to the drawdown of all four lower Snake River
reservoirs by 2002. As discussed in Ocean and Coastal Law Memo Issue 41, NMFS preliminary
recovery strategies also recommended studying the effectiveness of drawdowns to spillway
crest before implementing such a strategy. NMFS is primarily interested in comparing the
improved smolt survival from drawdowns with survival resulting from improved smolt
transportation around dams. NMFS's approach with respect to drawdowns is described
further in Section V.

3. Harvest Management Recovery Tools

Management of ocean and in-river salmon harvest is complicated by the fact that management
falls under a variety of jurisdictions and frameworks, from the agreement between Washington
and Oregon in the Columbia River Compact, to court-supervised tribal and nontribal in-river
fishing pursuant to the Columbia River Fisheries Management Plan (CRFMP), to ocean salmon
management by the Pacific Fishery Management Council, to the international salmon treaty
between the United States and Canada. Thus tribal and nontribal commercial and recreational
fishermen as well as consumers have an interest in salmon harvest management.

Harvest management tasks to avoid extinction include (1) increasing adult escapement for
Snake River fall chinook by modifying existing ocean harvest management rules and (2)
increasing adult escapement for all listed species by modifying existing in-river harvest
management rules. Tasks to sustain recovery include (1) protecting all listed species by
developing harvest management rules to account for future fisheries, (2) protecting all listed
species through development of alternative harvest methods, and (3) protecting all listed
species through reduction in harvest capacity.

After the initial strict harvesting regimes imposed to increase escapement, NMFS recommends
that the parties to the CRFMP as well as the state of Idaho and the Shoshone Bannock Tribes
incorporate management rules that eventually allow for increased harvest (NMFS 1995b, at V-
3-23). Additionally, NMFS recommends development of harvest management plans by January
1999 consistent with long-term recovery objectives (Id. at V-3-24). NMFS also recommends
that the Salmon Technical Team of the Pacific Fishery Management Council and the Technical
Advisory Committee to the CRFMP evaluate selective harvest methods and eventually
recommend changes in mesh size consistent with increased salmon productivity (Id. at V-3-25).
Finally, NMFS recommends that Oregon and Washington initiate a vessel and permit buy-back
program designed to reduce the Oregon and Washington commercial troll fishery by 50 percent
and to eliminate the nontreaty gillnet fishery in the mainstem Columbia River by 2002 (Id. at V-
3-28).

4. Artificial Propagation

Steps to avoid extinction include (1) conserving remaining Snake River salmon gene pools
through implementation of captive broodstock/supplementation/gene bank programs, (2)
protecting listed species from excessive genetic introgression, and (3) minimizing impacts on
listed salmon from interactions between Columbia Basin hatchery salmon and natural salmon.
Tasks to begin recovery include (1) improving survival of Columbia River Basin anadromous
salmonids by improving the quality of fish released from hatcheries, (2) reducing adverse
interactions (predation, competition) between listed salmon and hatchery steelhead, and (3)
minimizing interactions (predation, competition) between listed salmon and hatchery trout.
Tasks to sustain recovery include (1) restoring listed chinook salmon by reintroducing them into
historic habitat and (2) conducting research to facilitate management that optimizes hatchery
production and conserves natural populations (NMFS 1995b, Chapter V, Section 4).

5. Enforcement

Tasks to avoid extinction and prevent loss of listed salmon include (1) increasing the law
enforcement presence throughout their range, (2) enforcing existing federal regulations, and (3)
creating a cohesive and effective enforcement strategy by coordinating with all existing law
enforcement entities involved in salmon recovery efforts.

Existing fisheries enforcement on the Columbia and Snake Rivers is coordinated through the
Columbia Basin Law Enforcement Council. The Council has created a Salmon Enforcement
Team to protect endangered salmon. NMFS calls for increased patrolling of river areas "to
identify unreported and illegal activities detrimental to salmon survival" (NMFS 1995b, at V-5-
2). The Recovery Plan also calls for NMFS and the U.S. Fish and Wildlife Service to "adopt
Federal regulations consistent with existing state regulations," as well as "Federal regulations
which will provide for effective enforcement of the ESA" (Id. at V-5-4).

IV. NPPC 1994 Columbia River Basin Fish and Wildlife Program

A. Introduction

In response to the decision in Northwest Resource Information Center v. Northwest Power
Planning Council, the NPPC began further consultation with fishery managers to redevelop a
salmon strategy. The 1994 Columbia River Basin Fish and Wildlife Program (NPPC 1994)
incorporates changes on the basis of comments on the earlier salmon strategy, as well as
recommendations from fishery managers.

B. Recommendations for Salmon Recovery

1. Juvenile Salmon Migration

The NPPC recommendations for juvenile salmon migration focus on increasing flow and velocity
of the Columbia and Snake River systems, based on a "positive characterization" of the
"relationship between flow, migration speed and salmon survival" (NPPC 1994, at 5-4). The
Fish and Wildlife Program calls for immediate mainstem survival actions, including (1) an
expedited program to improve fish bypass at mainstem dams through the use of surface bypass
systems and, until these and other bypass improvements are in place, additional spill to levels
that do not exceed state-defined levels of nitrogen gas supersaturation; (2) improvements in
spill efficiency; (3) improved Snake River flows through acquisition of water; (4) improved
flows in the Columbia River through modified operation of the Grand Coulee and Albeni Falls
Dams and negotiations for additional water from Canadian storage reserves; (5) enhanced
velocity in the Snake and Columbia Rivers through drawdown of the Lower Granite and Little
Goose reservoirs; (6) an emphasis on in-river juvenile salmon migration in all but the worst
water conditions; and (7) an intensified effort to control predators and reduce competition with
depressed salmon stocks. The Program also calls for evaluation of additional mainstem
actions, including (1) additional upstream storage reservoirs to hold water in good years and
make it available in dry years and (2) additional velocity improvements including additional
drawdowns to spillway or natural river levels.

Like NMFS, the NPPC has adopted an "adaptive management" approach. The NPPC proposes
that river operations over the next several years deal with uncertainty in the effects of
transportation, flow, and velocity augmentation on salmon survival by "spreading the risk."
The NPPC proposes an experimental approach to compare survival between two groups of
salmon: those that were transported past the mainstem dams and those that migrated in the
river with the enhancements called for by the NPPC. A Fish Operations Executive Committee
will review the experiment and its implementation. The NPPC also calls for coordination
between the NPPC and NMFS and the convening of a technical committee to provide technical
coordination and experimental design.

2. Adult Salmon Migration

Increased spills to improve downward migration of juvenile salmon may impede adult salmon
returning upriver to spawn. The NPPC recommends that the "Corps of Engineers implement all
spill and operating criteria for mainstem adult fish passage facilities." The NPPC also
recommends that juvenile fish screens remain on longer to prevent adult salmon from falling into
the powerhouse. Finally the NPPC recommends that COE study ways to improve passage and
survival of adult salmon and calls on more "research on fish disease at passage facilities"
(NPPC 1994, at 6-1).

3. Coordinated Salmon Production and Habitat

The NPPC recommends an ecosystem approach to habitat management with "close
coordination of habitat and production measures." The NPPC recommends a "subregional"
process that draws from local, private, and government initiatives. The NPPC calls for
"immediate efforts to gather data on wild and naturally spawning stocks, review impacts of the
existing hatchery system and coordinate supplementation activities." The NPPC also calls for
"changes in land and water management, water diversion screening, habitat priorities and an
expedited funding process" (NPPC 1994, at 7-1).

4. Salmon Harvest

Specific NPPC objectives include (1) development of management goals and escapement
objectives that consider weak stocks; (2) adoption of more conservative exploitation rates; (3)
development of alternative harvest opportunities through improved selective harvest
techniques; (4) improvement of stock identification, including genetic identification and marking
of hatchery fish; and (5) other harvest measures such as seeking changes in sport fishing
regulations, improving enforcement of incidental takes, including Idaho and Indian Tribes in the
Columbia River Compact, and modifying international treaty provisions to reduce Canadian
interception of Columbia River salmon (NPPC 1994, Section 8).

5. Changes in the NPPC

No court challenges to the validity of the NPPC's revised salmon recovery strategy are pending.
Since the revised strategy was unveiled in December, however, the composition of the NPPC
has changed. New Idaho Governor Phil Batt has appointed two new members to the NPPC
who may change the voting balance on critical components of the NPPC strategy. Because of
the economic impact of reservoir drawdowns on Idaho irrigators, tourism, and hydropower
operations, the current NPPC strategy requiring drawdowns of lower Snake River reservoirs
may no longer have much support on the NPPC. The spring 1995 issue of Northwest Energy
News, a newsletter of the NPPC, states: "Specifically, the Council will investigate the science
underlying the fish-survival benefits of increased flow and water velocities in the Snake and
Columbia rivers, spill at dams, barge transportation of juvenile fish, and reservoir drawdowns
in the lower Snake and at John Day Dam on the Columbia." In short, the entire NPPC salmon
strategy may be back on the table.

V. NMFS Biological Opinion on the Reinitiation of Consultation on 1994-1998 Operation of the
Federal Columbia River Power System and Juvenile Transportation Program

In response to the opinion in Idaho Dept. of Fish &;Game v. National Marine Fisheries Service,
NMFS reinitiated section 7(a)(2) consultation on the effects of FCRPS operations on endangered
salmon. As a result of this new consultation, NMFS has determined that the operations of the
FCRPS will jeopardize the endangered salmon species (NMFS 1995a). NMFS's analysis of the
effect of river operations is based primarily on two life cycle models, each of which offers a
different result when predicting the outcome of management actions. "One model suggests that
increased flows through reservoir drawdowns has the best chance of ensuring species survival,
while a strategy that relies on transportation is likely to lead to extirpation. The other suggests
that increased and improved transportation has the best chance of ensuring species survival,
while a strategy that relies on drawdown is likely to lead to extirpation." Because of the tension
between these models, NMFS recognizes that "there is great risk to the survival and recovery of
the listed stocks of any management option that relies solely and conclusively on any single set
of assumptions" (Id. at 84).

As a result of the jeopardy finding, the Biological Opinion provides a "reasonable and prudent
alternative" to the FCRPS proposal, which includes "immediate survival improvements," "major
structural modifications," and "immediate planning and evaluations to address potential
system modifications" (NMFS 1995a, at 91). The proposed alternative in the Biological
Opinion essentially mirrors the Recovery Plan requirements for the mainstem and estuarine
ecosystem and calls for improved flows in the Columbia and Snake Rivers through flow
augmentation, increased spills at the Columbia and Snake River projects, and measures to
improve bypasses and improve transportation of juvenile salmon. Thus pending court
challenges to the Opinion could have major implications for the validity of the Recovery Plan.
The Biological Opinion calls for COE to complete design and engineering work to allow
drawdown of Snake River reservoirs by 2000 and requires COE to test surface collection
technology at the Lower Granite and The Dalles Dams by June 1996.

Because of the economic impact of reservoir drawdowns on hydropower operations, tourism,
and irrigators and the persistence of uncertainty about the benefits to salmon of drawdowns,
this portion of the salmon recovery strategy has been the most controversial.

VI. Analysis of Ecosystem Management and Recovery Plan Guidelines

In response to a mandate by President Clinton, the USFS and the BLM are currently drafting a
Scientific Framework for Ecosystem Management in the Interior Columbia River Basin (Eastside
Ecosystem 1994). The ecosystem approach that is being developed by federal land
management agencies has a goal to reflect new scientific information that challenges traditional
resource management and changes in societal values, as well as a goal to maintain "ecosystem
integrity" (Id. at v). While this approach to management was prompted by the need to protect
the northern spotted owl, the same principles of ecosystem management are being applied to
Columbia River salmon recovery.

The Framework identifies four principles of ecosystem management to be taken into
consideration by forest managers. First, "ecosystems are dynamic and evolutionary."
Management implications of this principle include "Management must be site specific. . . .
Management practices should consider historical and potential disturbance regimes and their
resultant patterns and effects. . . . Natural resource managers should be able to predict the
consequences of management activities and consider their influence on ecosystem development
including the possible change in developmental pathways. Measurement variable and methods
should be selected to evaluate changes in ecosystem structures and functions" (Eastside
Ecosystem 1994, at 9). The second principle of ecosystem management is that "it is useful to
view ecosystems as being organized within a hierarchy, with each level having a variety of time
and space scales." The scientists recommend that "[m]anagement decisions should be
integrated recognizing different spacial and temporal scales and a variety of socially defined
outputs." In addition, "[m]onitoring at frequencies and scales appropriate to disturbance events
and rates of change can help management understand ecosystem development" (Id. at 10).
Under the third principle that "[e]cosystems have biophysical and social limits, [d]ecisions in a
ecosystem management context should consider intergenerational equity and tradeoffs" (Id. at
12). Finally, the fourth principle of ecosystem management that "[t]here are limits to the
predictability of ecosystem patterns and processes; conditions and events may be predictable
at some scales but not at others," leads to the recommendation that adaptive management
principles be used (Id. at 13).

The modified PACFISH strategy being applied to the habitat component of the NMFS Recovery
Plan is one way in which the Recovery Plan utilizes the ecosystem approach. The focus on
adaptive management for the other components of the Recovery Plan strategy also follows an
ecosystem approach.

VII. Discussion

A. Adaptive Management and Biodiversity Conservation Strategies

The NMFS Recovery Plan and the NPPC salmon strategy take the same approach in that they
are both adaptive management strategies that adhere to ecosystem management principles. The
primary differences between the two (NMFS favoring juvenile salmon transportation, while the
NPPC takes bolder steps to modify in-river conditions) may be relatively minor when seen as
part of an "adaptive" experimental framework.

Adaptive management "provides a framework within which measures can be evaluated
systematically as they are carried out" (Lee and Lawrence 1986). The NPPC adopted an
adaptive management approach in 1984 and arguably has been conducting a salmon
management "test" since that time, making changes, developing new hypotheses, and modifying
the Columbia River Basin Fish and Wildlife Program throughout that time. In the past 10 years,
the experimental approach has not led to improvements in salmon survival, and, as indicated
by the elevation of the status of Snake River chinook from threatened to endangered, salmon
populations are continuing to decline.

While the NMFS Proposed Recovery Plan also embraces the adaptive management strategy,
because past attempts to preserve Columbia-Snake River salmon have not been successful, it
may be useful to compare the general approaches of the NMFS and NPPC strategies to other
recommendations for conserving aquatic biodiversity. This section will compare the NMFS and
NPPC strategies with the general conservation strategy proposed by Reed Noss and Allen
Cooperrider (1994). Although Noss and Cooperrider's recommendations for restoring aquatic
biodiversity are not site-specific, the approach is broadly applicable to the Columbia River
salmon in that the causes of salmon degradation--habitat loss (including water diversion),
hatcheries, hydropower operations, and overfishing--are not unique to the Columbia River, but
are among the threats to aquatic biodiversity everywhere.

Noss and Cooperrider have examined the problems of conserving aquatic biodiversity and
concluded that they largely mirror threats to terrestrial biodiversity at a landscape level,
including habitat fragmentation and loss of genetic variation. Landscape design principles,
when applied to watershed-level restoration, require zoning the watershed into reserves and
buffers around reserves with increasing human use, with corridors between reserves. "More
progressively, however, the aquatic network must be viewed as inherently imbedded in a matrix
of land with which it interacts in complex ways. Thus, aquatic and terrestrial zoning need to be
accomplished in an integrated and coordinated way" (Noss and Cooperrider 1994, at 283).
Past management strategies have focused on single species (game fish), and fragmented agency
jurisdiction between fisheries management and riparian land management has led to an inability
to manage on an integrated watershed level. To mask loss of wild fish populations, hatchery
production has been a large component of fishery management. Noss and Cooperrider describe
this as a "halfway technology" that has done more damage to fish preservation than it has
prevented. Hatcheries produce fish without taking into consideration that the environment in
which they are being placed is no more suitable for hatchery fish than it is for wild fish.
"Furthermore, hatcheries are expensive, they cause genetic problems when hatchery fish breed
with wild fish adapted to local conditions, they encourage overfishing of mixed stock fisheries,
and most importantly, they hide or mask the real problem of habitat degradation" (Id. at 285).
Another problem with historical aquatic ecosystem management practices is the lack of accurate
models for both habitat evaluation and instream flow determination (Id. at 286-87).

Noss and Cooperrider's strategy for conserving aquatic biodiversity incorporates such
principles as watershed-level management, utilization of historical flow patterns as a baseline
for management and evaluation, integration of land and water management, establishing
reserves, and restoration that focuses on "underlying process" rather than "halfway
technologies" (Noss and Cooperrider 1994, at 288-89). The aquatic conservation strategy
includes recommending coordinated planning and management, classification and zoning of the
watershed, reserve management, management of nonreserve areas for multiple use, and
restoration. More specific guidelines for watershed management include (1) zoning reserve
areas to exclude incompatible human activities, (2) maintaining or mimicking historic flows to
the greatest extent possible, (3) expanding enforcement of antipollution laws, (4) prohibiting
new floodplain development, (5) prohibiting new dam construction and removing existing dams
over time, and (6) prohibiting introduction or transplants of exotic species and eliminating
nonnative species where possible (Id. at 294-95). Further guidelines for restoration include (1)
prioritize restoration for areas "of high species richness or high native species productivity," (2)
design restoration to "restore natural functions of aquatic systems," (3) restore polluted areas
that may become more damaging in the future, (4) determine "cost/benefit or other economic or
ecological analysis at the appropriate scale," (5) "work from the headwaters down," and (6)
exercise caution in restoration activities. In particular, reintroducing endangered fish requires
caution, and Noss and Cooperrider recommend following guidelines developed by the American
Fisheries Society (Id. at 295-97).

The adaptive management framework used by the NMFS and NPPC strategies is consistent
with a conservation strategy that emphasizes monitoring and incorporation of new scientific
information into the management strategy. However, the success of adaptive management
strategies depends on the strength of management directives and on the scientific assumptions
built into experimental design and monitoring. In general, both NMFS and the NPPC have
addressed the key components necessary for salmon recovery, but neither plan takes bold steps
that are more likely to result in actual salmon recovery. Specifically, although the PACFISH
strategy that was expanded on and incorporated into the NMFS habitat strategy takes some
steps to protect riparian habitat conservation areas, neither NMFS nor the NPPC call for the
prohibition of destructive activities such as mining, salvage timber harvest, road building, and
grazing. While PACFISH recommends that scheduled timber harvest not occur in riparian
habitat conservation areas, it does not recommend prohibition on "salvage" timber harvest
(NMFS 1995b, at V-1-28). Rather than promoting a "reserve" concept for priority watersheds
and prohibiting all activities, the NMFS approach is to allow activities that only have a "de
minimis" risk of adversely impacting salmon habitat. Agencies permitting activities in riparian
habitat conservation areas will have to give NMFS "a clear demonstration, based on both
watershed and site-specific analyses, how these actions will avoid adverse effects and how
they will not retard or prevent attainment of ecological goals. . . " (Id.).

The actions proposed by NMFS with respect to mainstem recovery differ from a conservation
strategy that emphasizes restoring or mimicking flows at historic levels. Although more study
may be needed on the comparative benefits of barging fish versus drawing down reservoirs to
spillway crest levels, a more aggressive experimental strategy could compare transportation
benefits to benefits from drawdowns to natural river levels.

B. Implementation

Two remaining issues are whether the Recovery Plan can be implemented and whether
enforcement of the plan, especially with regard to habitat impacts, will be successful. The
enforcement mechanism called for in the Recovery Plan relies heavily on the promulgation of
new regulations for ESA enforcement. But new regulations promulgated to implement the
Recovery Plan may have to clear new statutory hurdles included in proposed ESA amendments
pending before Congress.

This memo has not addressed the costs to implement the Recovery Plan in terms of both federal
funding for administrative actions and lost economic opportunities for existing river users and
treaty and nontreaty salmon harvesters. In a report to NMFS, a University of Washington
study concludes that recovery costs without major hydropower changes will amount to nearly
$1 billion; changes to the hydropower system are estimated to be over $167 million (Huppert
and Fluharty 1995). "A major weakness in both the recovery effort and the available cost
assessment is the lack of a well-designed river/habitat/fish monitoring system to support
adaptive management. Whether the Pacific Northwest region learns how to preserve salmon
populations or simply spends lots of money on politically popular 'solutions' over the next
decade will depend upon the careful design and monitoring of adaptive steps. In the long run,
the most costly program of salmon recovery is one that vacillates between ill considered
'emergency' measures without accumulating the wisdom to preserve the habitats of endangered
species in a cost effective manner" (Id.).

Other stumbling blocks include congressional overrides such as Senator Gorton's amendment to
the congressional appropriation's "Recision Bill" allowing "salvage" timber cutting without
preparation of an EIS (H.R. 1158). Appeals of timber sales would be permitted only if they are
made within 15 days of the initial advertisement of the challenged timber sales. If enacted, this
congressional mandate may severely affect salmon habitat in Columbia River Basin forests east
of the Cascade Range.

The latest salmon recovery strategies proposed by NMFS and the NPPC arrive during intense
controversy over the effectiveness of the ESA, as well as congressional efforts to modify and
weaken the ESA, in particular with respect to the perceived restraints the ESA places on
development and private property owners. Congress has already passed legislation
temporarily prohibiting new listings under the ESA. Whether the U.S. Fish and Wildlife
Service's proposed reclassification of the two Snake River chinook species from threatened to
endangered will be affected remains to be seen.

The U.S. Supreme Court should be releasing its opinion shortly on whether the U.S. Fish and
Wildlife Service correctly implemented the ESA when it promulgated regulations preventing
private land owners from modifying habitat that would "harm" an endangered species. The
District Court for the District of Columbia upheld the regulation, but the Circuit Court for the
District of Columbia reversed the district court (Sweet Home v. Babbitt, 17 F.3d 1463 (D.C. Cir.
1994), cert. granted and oral argument held). The outcome of this decision will likely impact the
salmon recovery strategy, in particular the enforcement of riparian habitat measures designed to
protect salmon.

VIII. Conclusion

After years of disjointed management of the Columbia-Snake River system, federal agencies
have been forced into a new management approach to comply with the mandates of the ESA
and NPA. The salmon recovery strategies that emerged after federal judges rejected previous
attempts to comply with the ESA and NPA move in a direction that integrates management of
the river system with riparian land use practices, and river management with ocean harvest
activities and ocean conditions. Endangered salmon are serving as indicator species for
restored ecosystem health in the Pacific Northwest, with the ESA serving as the primary driving
force for reversing adverse trends and federal courts as the system coordinator.

If new barriers prevent ESA-based recovery strategies from being effectively implemented,
Columbia River stakeholders, and Indian tribes in particular, may want to refocus on broader
alternative measures such as the NPPC's program and a tribal claim that the federal
government's trust responsibility to tribes includes a mandate to conserve salmon important to
the tribes. Both of those measures encompass salmon species not yet listed under the ESA.

The ESA recovery process for Columbia-Snake River salmon also foreshadows what may occur
for other weak West Coast salmon stocks whose ESA status is currently under review by
NMFS. Their recovery will be the focus of future issues of this memo.

REFERENCES AND BIBLIOGRAPHY

Big river news: A quarterly publication of the Northwest Water Law and Policy Project.
Portland, OR: Northwestern School of Law of Lewis and Clark College. Various issues.

Columbia River Inter-Tribal Fish Commission (CRITFC). 1995. Restoring salmon to the
Columbia River watershed: A tribal perspective. Portland, OR.

Diamant, Adam, and Zach Willey. 1995. Water for salmon: An economic analysis of salmon
recovery alternatives in the lower Snake and Columbia Rivers. Environmental Defense Fund.

Eastside Ecosystem Management Project. Science Integration Team. 1994. Scientific framework
for ecosystem management in the interior Columbia River Basin. Working draft, version 2. Walla
Walla, WA: The Project.

Hildreth, Richard, and Jeanne Thompson. 1994. Legal aspects of Columbia-Snake River salmon
recovery. Ocean and Coastal Law Memo, issue 41. Eugene, OR: Ocean and Coastal Law
Center, University of Oregon School of Law.

Huppert, Daniel D., and David L. Fluharty. 1995. Economics of Snake River salmon recovery:
A report to the National Marine Fisheries Service. Seattle: School of Marine Affairs, University
of Washington.

Lee, Kai N., and Jody Lawrence. 1986. Adaptive management: Learning from the Columbia
River Basin Fish and Wildlife Program. Environmental Law 16:431-460.

Northwest Power Planning Council (NPPC). 1994. Columbia River Basin Fish and Wildlife
Program. Portland, OR.

Noss, Reed F., and Allen Y. Cooperrider. 1994. Saving nature's legacy: Protecting and restoring
biodiversity. Washington, DC: Island Press.

U.S. Department of Agriculture. National Forest System. Forest Service Research. 1993.
Eastside forest ecosystem health assessment. Vol. 1, Executive Summary. N.p.

U.S. National Marine Fisheries Service (NMFS). 1995a. Endangered Species Act section 7
biological opinion on the reinitiation of consultation on 1994-1998 operation of the federal
Columbia River Power System and juvenile transportation program. Seattle, WA.

U.S. National Marine Fisheries Service (NMFS). 1995b. Proposed recovery plan for Snake River
salmon. N.p.

ABBREVIATIONS AND ACRONYMS

BLM - Bureau of Land Management

BOR - Bureau of Reclamation

BPA - Bonneville Power Administration

COE - Corps of Engineers

CRFMP - Columbia River Fisheries Management Plan

CRITFC - Columbia River Inter-Tribal Fish Commission

EIS - Environmental Impact Statement

EPA - Environmental Protection Agency

ESA - Endangered Species Act

F. - Federal Case Reporter

FCRPS - Federal Columbia River Power System

Fed. Reg. - Federal Register

MOA - Memorandum of Agreement

NMFS - National Marine Fisheries Service

NPA - Northwest Power Act

NPPC - Northwest Power Planning Council

RHCA - Riparian Habitat Conservation Areas

RMO - Riparian Management Objectives

USFS - U.S. Forest Service