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National Wildlife Federation v. National Marine Fisheries Service

ELR Citation: 46 ELR 20088
Nos. No. 3:01-cv-00640, (D. Or., ) (Simon, J.)

A district court, in a 149-page opinion, held that the government violated the ESA and NEPA when it approved its 2014 biological opinion (BiOp) for the Federal Columbia River Power System (FCRPS) and its impact on salmon and steelhead. The FCRPS consists of hydroelectric dams, powerhouses, and associated reservoirs on the Columbia and Snake Rivers. The court ruled that NMFS acted arbitrarily and capriciously when it issued its BiOp concluding that the operations of the FCRPS would not violate the ESA based on 73 reasonable and prudent alternatives (RPAs) described in the BiOp. The BiOp evaluated the recovery prong of the jeopardy analysis under a “trending toward recovery” standard. But this standard does not include any metric or goal that considers whether the incremental improvements to the currently low abundance levels are sufficient to avoid creating a “new risk of harm” by decreasing the listed species' chances of recovery. Without tying its recovery metrics to any rough estimated recovery abundance level or time frame, NMFS cannot rationally conclude that the RPA actions will not appreciably reduce the species’ chances of recovery. In addition, NMFS's jeopardy analysis was arbitrary and capricious, as many of its findings were significantly flawed. In addition, the U.S. Army Corps of Engineers and U.S. Bureau of Reclamation violated NEPA by failing to prepare an EIS in connection with their records of decision implementing the 73 RPAs described in the BiOp. The court, therefore, vacated the BiOp and ordered NMFS to prepare a new BiOp no later than March 1, 2018.