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Hydropower Licensing
Dam
Safety and Security
Endangered
Species Act
Clean Water Act
Energy Policy Act
Endangered Species Act
 Hydroelectric projects must comply with the Endangered
Species Act. This means that a federal agency with ESA responsibilities or
“Service” (i.e. the U.S. Fish and Wildlife Service or NOAA Fisheries) must find
that the impact of a hydropower project does not jeopardize
an endangered species. Dam operations must either have no negative impact on
listed fish, or operators must obtain incidental take authorization for the Project’s
effects on listed species.
History of the Endangered Species Act
The Endangered Species Act was passed in 1973 to conserve
endangered and threatened species and the ecosystems upon which they depend. It
gives the Secretary of the Interior and the Secretary of Commerce (the Services)
authority to issue regulations determining whether species are threatened or
endangered. due to “(A) the present or threatened destruction, modification, or
curtailment of its habitat or range; (B) over-utilization for commercial,
recreational, scientific, or educational purposes; (C) disease or predation; (D)
the inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence. (U.S.C. §1533(a)(1)).
When making determinations as to whether a species is
threatened or endangered, the Secretary is also required to designate critical
habitat with limited exceptions. The U.S. Fish and Wildlife Service is responsible for the protection
of terrestrial and freshwater animal, fish and plant species. The National
Marine Fisheries Service is responsible for the protection of ocean species and anadromous species, such as salmon. The Services are also responsible for
developing recovery plans for species listed pursuant to the Act.
Federal agencies have a unique obligation pursuant to Section 7
of the ESA to consult with the National Marine Fisheries Service or
the U.S. Fish and Wildlife Service whenever actions that they
authorize, fund or carry out "may Affect" a listed species. In
the hydropower context, this obligation primarily applies to the
FERC in issuing a hydroelectric license order, and to the U.S. Army
Corps of Engineers in issuing a Clean Water Act section 404 permit
for any projects requiring dredging or filling in navigable waters.
The purpose of the Section 7 consultation is to assist the federal
agency in ensuring that its actions and the actions of any permit or
license applicant are not likely to "jeopardize the continued
existence" of a listed species or "destroy or adversely modify " a
species designated critical habitat.
Under the ESA, it is prohibited
for anyone to “take” threatened or endangered species. The Act defines “take”
as to harass, harm, pursue, shoot, wound, kill, trap, hunt, capture, or collect,
or to attempt to engage in any such conduct. Civil and/or criminal penalties
can be imposed. There are certain exceptions, however, for which permits may be
issued by the Services. For example, permits may be issued for scientific purposes or to
enhance the propagation or survival of the affected species. They may also be
issued if a taking is incidental to, and not the purpose of, the carrying out of
an otherwise lawful activity. Hydropower licensees have obtained scientific
permits for obtaining hatchery broodstock. Incidental take permits have also
been obtained by some licensees to operate hydropower facilities that may impact
fish. These permits generally require development of a Habitat
Conservation Plan and implementation of significant conservation
measures to secure the
compliance with the ESA.
The ESA provides that
interested persons can file petitions with the Secretaries to add or remove
species from the list. In turn, the agencies are required, to the maximum extent
practicable, to determine within 90 days whether enough information has been
presented to indicate that a listing may be warranted. The Secretary must begin
to take action in response to the listing petition within one year if a review
is warranted. If the Secretary decides to initiate a listing, a lengthy public
comment period is initiated.
Decisions made under the
Endangered Species Act can be highly controversial because they may restrict the
use of natural resources and affect the livelihood of farmers or workers who
rely on such industries. In addition, lawsuits are commonly filed pursuant to
the ESA. Citizens may initiate legal action against anyone violating the
Act. In addition, the ESA expressly provides for the
commencement of citizen suits against the government for failing to
perform its duties under the Act.
ESA compliance is a top priority for hydropower operators,
but it can be extremely problematic for many reasons, not the least of which is
conflict with other laws, regulations or permitting requirements:
Tools can be challenged. Some hydropower ESA compliance
programs include a predation control component to help protect ESA-listed fish.
Control of avian predators can, however, conflict with other laws or agency
management priorities. The Migratory Bird Act and environmental lawsuits, for
example, limit the ability of hydropower owners to protect Treaty fish from predators
such as common seagulls.
Success is a moving target. Sometimes federal agencies
require modifications to fish passage facilities. Physical structures or
operational changes can help fish pass dams more safely – though not every fish
passage structure is appropriate at each uniquely configured dam. Hydropower operators can be faced with continually
changing and conflicting design criteria.
ESA compliance can conflict with other laws. Generally,
federal agencies require hydropower owners to “spill” water for fish, which
means a dam passes water, usually through spill gates, without using it to
generate power. Young fish can use spill to avoid traveling through the
powerhouse, but spilling water can increase gas levels in the water. Gas levels
that are too high can have negative impacts on fish. Hydropower owners must
work closely with federal and state agencies to ensure that federally-mandated
fish passage spill requirements do not put licensees at odds with other aspects
of fish and wildlife protection.
Consultation may be duplicative. Under Section 7 of the ESA,
federal action agencies must formally consult with a federal “Service” agency
before authorizing any activity that may affect an endangered or threatened
species. Formal consultation does not take place until the federal action is
ready for decision – often after years of informal discussions with the relevant
agencies. In hydropower licensing, for example, these biological opinions are
often the last development in a long relicensing or permitting process that has
already considered measures for ESA-listed species.
ESA compliance is a major consideration for hydropower
facilities whether they are operated by public power companies, private
utilities, electric cooperatives and irrigation districts, or the federal
government itself. In the Northwest, the most prominent example of the ESA as
it pertains to hydropower is the remand of the National Marine Fisheries
Service's 2004 biological opinion for the Federal Columbia River Hydropower System and
2005 biological opinion for the Upper Snake River Adjudication Agreement..
NOAA Fisheries’ 2004 biological opinion on the FCRPS
declared that dam operations for hydro production, fish passage and other
purposes did not jeopardize survival of 12 listed Columbia/Snake River salmon
and steelhead stocks. The ruling responded to a challenge by a coalition of
environmental groups led by the National Wildlife Federation. On May 26, 2005,
Judge James A. Redden declared the BiOP to be invalid because it considered only
dam operations, not just the presence of dams, in its jeopardy opinion. Fishing
and conservation groups are the plaintiffs in case; NOAA Fisheries, the Corps
and the BOR are the defendants.
On December 21, 2005, conservation groups asked the judge
in the FCRPS case to also declare the 2005 biological opinion for the Upper
Snake River storage and hydroelectric projects illegal. On May 23, 2006, Judge
Redden remanded the Upper Snake BiOp and joined that remand to the 2004 FCRPS
BiOp remand process. While NOAA Fisheries was not required to combine an
analysis of the effects of the Upper Snake water projects and the FCRPS projects
into a single BiOp, Judge Redden required that the effects from all the projects
be included in a BiOp's comprehensive analysis.
Currently, federal agencies are meeting with state and
tribal fish managers in a collaborative process to correct legal flaws in the
biological opinion. For more information on the status of the remand process,
go to
the
Regional section of this web site or visit
www.salmonrecovery.gov.
The ESA requires NOAA Fisheries to develop recovery plans for listed species that describe management activities necessary for recovery. The agency has developed a strategy for recovery planning in the four states of
Washington, Idaho, Oregon and California that combines ESA-listed salmon and
steelhead distinct population segments in geographic areas. Recovery plans are
being developed for these areas in coordination with local stakeholders.
Specifically, NOAA Fisheries has encouraged the sub-basin and watershed
planning. As a result, plans developed by local stakeholders are being
incorporated into NOAA Fisheries recovery planning process. Recovery
planning looks at all aspects of recovery salmon and steelhead, including the
effects of the hydropower system, hatcheries, harvest and habitat. To
learn more about this process, visit NOAA Fisheries' web site on
Salmon
Recovery Planning.
The federal action agencies released on September 9, 2007, key
scientific and technical
documents describing how they will operate and maintain the
federal dams on the
Columbia and Snake Rivers for ESA-listed fish. NOAA will use these
documents to do
an independent analysis and develop new BiOps for the operation of
these dams for
listed fish.
The treatment of hatchery fish under the Endangered Species
Act is an important and controversial issues that is being addressed in a number
of forums - not the least of which are the federal courts. Whether a
hatchery species is counted in the designation of a specific population can
determine whether or not a species is rare enough to be listed. In
addition, there is increasing controversy about the extent to which
hatchery-raised fish compete with wild fish for habitat and food resources.
While hatchery-supplemented fish can provide enough fish for harvest, some
groups are concerned that endangered species should never be harvested.
Because hydropower licensees often use hatchery supplementation as a method of
mitigating against impacts to migrating fish at dams, changes to hatchery policy
could have a significant impact on Northwest utilities. NWHA hosted a
workshop on hatchery issues at its annual conference on February 20,
2007, in Portland, Oregon. Below are some examples of recent
development in hatchery policy.
On June 28, 2005,
NOAA Fisheries issued its new hatchery listing
policy subsequent to the Alsea Valley Alliance v. Evans lawsuit,
which invalidated the practice of excluding hatchery stocks from Endangered
Species Act (ESA) listing determinations. Under the new policy, hatchery stocks
"determined" to be a part of a "distinct population segment" will be considered
in determining whether a DPS is threatened or endangered under the ESA. A
number of related lawsuits have been filed in U.S. District Court in both Oregon
and Washington. See also the Litigation section
of this web site.
On January 25,
2006, Jim Connaughton, the Chairman of the White House Council on Environmental
Quality called for a comprehensive and collaborative approach to salmon recovery in the Pacific
Northwest. In response, NOAA Fisheries has launched a collaborative review of
how harvest and hatcheries - particularly federally funded hatcheries -- are
affecting the recovery of ESA-listed salmon and steelhead. In February, 2006,
Jim Waldo, a regionally-recognized attorney, facilitator and hatchery expert,
was hired to oversee a strategy leading to hatchery reform in the Columbia
Basin. Waldo has a past track record of leading the Puget Sound/Coastal
hatchery scientific review group. An initial progress report for the Columbia
River Hatchery Reform Project was issued on April
17, 2006. The entire process is scheduled for completion by 2008.
Read more at
Hatchery Reform Project.
NOAA Fisheries' Hatchery Policy and Steelhead "Downlisting" Found
Inconsistent with ESA and Best Science
The Supreme Court decides that the Endangered Species Act does not
trump the Clean Water Act
Alsea Valley Alliance v. Lautenbacher
On August 14, 2007, Judge Hogan ruled that the ESA does not prohibit
NOAA Fisheries from considering the extinction risk of both wild
fish and hatchery fish when making an ESU's status determination.
This does not conflict with his 2001 ruling, in which he held that,
if NOAA Fisheries defines an ESU to include certain hatchery fish,
then those hatchery fish must be part of the listed, or protected,
population. Moreover, Hogan's recent decision is consistent with
Judge Coughenour's 2007 holding that an ESU's status determination
must be based on the health and abundance of an ESU's wild fish, and
cannot be downgraded simply because of hatchery fish abundance.
Together, these three cases stand for the proposition that an ESU's
status must be based on the wild fish status, and that wild and
hatchery fish can be evaluated differently in determining an ESU's
status, but that all components of an ESU -- including any hatchery
fish defined as part of that ESU -- must be protected under the
listing.
On October 31, 2007: NOAA Fisheries today released draft
Biological Opinions for the Federal Columbia River Power System and
the Upper Snake River irrigation projects. These BiOps reflect
recent Court decisions, using a higher standard than in the past.
NOAA concludes that comprehensive actions and collaborative efforts
among states and tribes in hydropower operations and passage
improvemnts, habitat enhancements, hatchery reform and predator
management will assure survival and provide for recovery of
threatened and endangered fish stocks.
Pending ESA Legislation
See the Pending Legislation section of this web site for ESA-related
bills in Congress.
Pending ESA Litigation
See the Pending Litigation section of this web site for ESA-related
lawsuits.
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