ADMINISTRATION WOULD DEPRIORITIZE SALMON'S USE OF RIVERS

Mark Twain allegedly observed that “Whiskey is for drinking, water is for fighting!” in reference to the seemingly never-ending battle over who gets the riparian rights to rivers and the dry and water-starved American West.

When Twain made that observation, he was undoubtedly talking about fights between people, each of whom believes that they had the superior claim to a water source.  As noted by the United States Bureau of Reclamation, the federal agency primarily responsible for damming free-flowing rivers and halting their unimpeded access to the sea,

“Water, especially in the West, is our most valuable resource, our lifeblood.  It is used to grow food and to grow cities.  It provides power to run our homes, factories, and businesses.  It sustains our forests and deserts for wildlife and recreation.  It is our most powerful and yet most fragile natural resource.  Asserting and protecting water rights in the West is a time-honored tradition.  Many feel fighting over water is a matter of survival.”

But if you read that paragraph closely, you might note that something is missing.  It talks about all the uses people might have for water, and even talks about forest and desert wildlife, and yet another big user goes unmentioned.

As a federal appeals court observed in the case of San Luis & Delta-Mendota Water Authority v. Locke,

“People need water, but so do fish.”

The Bureau of Reclamation may have left fish out of its recital of water-dependent users, but we shouldn’t forget that access to water is very much a matter of survival for them, as well.  And that’s probably true for no fish as much as it is for salmon, which can’t survive and reproduce without access to both cool, flowing rivers and to the sea.

The problem is that while plenty of people are willing to fight to claim the salmon’s water, and to assert that their rights to power, drinking water, irrigation and such give them a superior claim to that of the fish that have only been running the rivers since the retreat of glaciers filled and, in many cases, created those streams many thousands of years ago, the fish are incapable of fighting back.  So we see rivers once traversed by millions of salmon ascending from the sea to their headwaters spawning grounds blocked by dams, diverted by irrigation districts and running to warm and thin to easily support any native fish at all.

San Luis v. Locke addressed just that problem, upholding a biological opinion issued by the National Marine Fisheries Service, which directed the water district to limit the water removed from California’s Sacramento-San Joaquin River system in order to better protect threatened and endangered runs of Pacific salmon, which were put in jeopardy by existing water diversion projects.

It was a win for the salmon, but the court decision didn’t go over well with the current administration. 

In 2018, President Trump conflated the water diversion debate with the ability to fight wildfires in the region, saying

“California wildfires are being magnified & made so much worse by the bad environmental laws which aren’t allowing massive amounts of readily available water to be properly utilized.  It is being diverted into the Pacific Ocean…  [emphasis added]”

The facts that the rivers are supposed to flow into the Pacific Ocean, have been doing so for millennia, and that the only diversions taking place are those that take water out of the rivers before it can flow to the sea, were apparently lost on the President. 

Shortly after being inaugurated, President Trump appointed David Bernhardt, a former attorney and lobbyist for the Westlands Water District who represented Westlands in the San Luis v. Locke matter, as Deputy Secretary of the Interior.  During his Senate confirmation hearing, Bernhardt, who has since become Secretary of the Interior after has predecessor resigned, said that

“the president’s views, rather than the recommendations of scientists, would guide the Interior Department’s policies whenever possible.”

It is thus hardly surprising that, late last year, under Bernhardt’s aegis, the United States Fish and Wildlife Service issued revised biological opinions that remove many of the restrictions on diverting water from the Sacramento-San Joaquin system, again placing salmon and other fish, including the endangered delta smelt, at risk, or that in February 2020, President Trump signed a memorandum based on such biological opinions that would allow more water to be diverted to California agricultural interests, at the expense of the salmon.

Such actions resulted in lawsuits brought by conservation advocates, fishing organizations and by the State of California.  On May 11, 2020, the Federal District Court for the Eastern District of California entered preliminary injunctions that require the Administration to comply with the requirements of the biological opinion underlying San Luis v. Locke, and to limit pumping from the Sacramento-San Joaquin Delta.

Although the final outcome of the litigation remains to be seent, as of now, the salmon have, at least, not lost the fight.

But up on the Columbia River, another Administration action, this time by the Environmental Protection Agency, also casts doubt on the salmon’s future.

As mentioned before, salmon need cool, flowing rivers and access to and from the sea if they are to be able to successfully feed, mature and spawn.  The Columbia River and its tributary Snake River currently host about two million salmon that head upstream to spawn each year, which is far below the fish’s historical abundance.  One of the big problems on both rivers is dams, which not only block upstream access to spawning areas, and kill many juvenile fish on their way to the sea, but also cause thermal pollution by releasing waters that have been warmed in the reservoirs that back up behind the dams.

It seems that water temperatures above 68 degrees can halt the salmon’s upstream migration, and prolonged water temperatures in the 70s will cause salmon to die.  An article in The [Spokane, Washington] Spokesman-Review noted that

“sources of heating identified by [a recent Environmental Protection Agency] report include water entering from tributaries; regulated discharges, known as point sources, from things like factories and municipal wastewater treatment plants; and from increased air temperatures attributed to climate change.

“But the dams play an outsized role.”

Breaching four dams on the lower Snake River, in order to reduce water temperatures, has long been seen by conservation advocates as the right way to address the problem.  The Columbia Riverkeeper issued a white paper, based on a computer model of water temperatures, which argues that despite all of the other factors impacting water temperatures, if the four lower Snake River dams were removed, the river would remain cool enough to keep salmon alive, even though temperatures might occasionally rise above 68 degrees and halt the upstream migration for a few days.

The United States Environmental Protection Agency recognizes that

“Salmon need cold water to migrate up rivers from the ocean for spawning.  Sometimes water can get too warm and have negative impacts on fish, including physiological stress, increased metabolic and cardiovascular demands, added disease risk, accelerated maturation, migration delays, and even death.”

However, when the EPA recently released its preliminary report, Total Maximum Daily Load (TMDL) for Temperature in the Columbia and Lower Snake Rivers, there was no suggestions that the dams be removed.  Instead, it charged the states with the primary responsibility of keeping water temperatures as low as practicable.  It noted that

“Even if all the allocations in this TDML are implemented and the temperature reductions envisioned are fully realized, it is unlikely that the numeric criteria portion of the water quality standards will be met at all times and in all places.”

It then went so far as to suggest that

“One option for addressing the conflict created by the inability to achieve applicable water quality criteria at all times and in all places is for the States to make changes to their applicable designated uses.  The federal regulation…provides requirements for establishing, modifying, and removing designated uses.  A state may designate a use or remove a use that is not that is not an existing use, if the state conducts a ‘use attainability analysis’ that demonstrates that attaining the use is not feasible…”

Although the EPA didn’t come right out and say so, what it was suggesting was that, if the dams were raising water temperatures too high for the salmon to survive and spawn, the answer wasn’t to remove the dams from the river, but to remove the salmon, or at least to remove the designation of the Columbia and Snake rivers as salmon spawning habitat.

That undoubtedly pleased some dam-dependent industries. 

The Northwest River Partners, an industry group that represents a number of local electric cooperatives, includes organizations such as the Norpac Paper Company, Oregon Wheat Growers League, and Port of The Dalles among its members, and has declared its mission to

“Lead the charge for the Northwest to realize its clean energy potential using hydroelectricity as its cornerstone,”

was quick to jump onto the EPA report’s feasibility comments, with its executive director saying

“The states may have established water quality standards that are unattainable even if the lower Snake and mid-Columbia River dams were not in place.  It would be unfair to penalize the communities that rely on hydropower for river temperatures way beyond their control.”

But it would apparently be completely fair, in the Partnership's view, to penalize—perhaps through extirpation—the salmon for the same river temperatures, and for having no control over that at all.

Thus, on the Columbia River, as on the Sacramento and San Joaquin, we see federal agencies further an administration policy that subordinates the needs, and the very survival, of native salmon runs to the desires of various industries, and by doing so, subordinates the public interest to private financial interests.

It is a troubling trend that has continued, unabated, for the past three years, halted or at least slowed only by public interest litigation and the actions of courts.

Government, and particularly those agencies charged with managing and protecting natural resources and the overall environment, is not supposed to work that way.