ELR Citation: 41 ELR 20247
No(s). 01-00640 (D. Or. Aug 2, 2011)

A district court held that NOAA Fisheries' 2008/2010 biological opinion (BiOp) for the Federal Columbia River Power System is arbitrary and capricious under the ESA. In the BiOp it issued to the U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation, NOAA Fisheries concluded that the operation of the power system, which is comprised of 14 sets of hydroelectric dams, powerhouses, and associated reservoirs, "is not likely to jeopardize the continued existence" of any species listed under the ESA through 2018. Its decision was based on measures to be implemented by the federal agencies to mitigate for significant salmon mortality caused by the system. The Corps and the Bureau of Reclamation, however, failed to identify specific mitigation plans beyond 2013. Because the BiOp's no jeopardy conclusion is based on unknown mitigation measures, NOAA Fisheries' decision is arbitrary and capricious. The BiOp was therefore remanded so that NOAA Fisheries could reevaluate the Corps' and Bureau's reliance on unknown mitigation measures. But because the BiOp identifies specific and beneficial mitigation measures through 2013, the BiOp and accompanying incidental take plan will stay in place until then.