In a move that could have ramifications in drought-stricken California, a group representing irrigators in the Columbia and Snake river basins want to use an obscure federal law to prevent new protection of the area's salmon and steelhead populations.
The Columbia-Snake River Irrigators Association has asked the governors of Idaho, Montana, Washington, and Oregon to invoke the "God Squad" provisions of the Endangered Species Act to address "excessive and unbridled litigation directed toward the region's electric power ratepayers," according to a letter sent to press outlets Monday.
The move comes in response to plans by environmental groups to sue the Bonneville Power Administration (BPA) over a salmon management plan for the watershed that activists say illegally reduces protection of the basin's salmon and steelhead.
The BPA is a federal agency that operates the huge Bonneville Dam on the Columbia River 40 miles east of Portland. On March 24, half a dozen fishing and conserrvation groups represented by the non-profit law firm Earthjustice sent BPA, NOAA Fisheries, and the federal departments of Commerce and Energy a notice of intent to sue over a NOAA Fisheries' updated plan for salmon management on the Columbia and Snake rivers.
The groups that signed the notice are the Federation of Fly Fishers, the Sierra Club, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Idaho Rivers United, and Northwest Sportfishing Industry Association.
The salmon management plan, formally entitled the NOAA Fisheries 2014 Federal Columbia River Power System supplemental biological opinion (BiOp), is NOAA's formal recommendation for how federal projects must be managed to ensure the continued existence of the watershed's 13 protected salmon and steelhead populations. Within hours of the BiOp's release in January, salmon protection groups were blasting it as a rollback of protections for the fish that violated federal law.
"Unfortunately," wrote the group Save Our Wild Salmon soon after the BiOp's release, "the Obama Administration's NOAA Fisheries has issued a plan that is virtually indistinguishable from the 2008/2010 BiOp, which was found illegal by a federal district court in 2011."
Though the impending suit is aimed at BPA, which is essentially a Federal power company, the irrigators don't want to see that suit result in a court-ordered new BiOp with stronger protections for salmon and steelhead. Columbia-Snake River Irrigators' association board member Darryll Olsen told the Kennewick, Washington-based Tri-City Herald that everything that could be done for the fish has already been done.
"We've got it fixed as good as it's ever going to be fixed," he said.
That's why they've asked the four governors to convene the God Squad, the environmental law equivalent of pro football's "Hail Mary Pass."
Formally known as the Endangered Species Committee, the God Squad would consist of representatives of the states involved along with the secretaries of Agriculture and the Interior, the Secretary of the Army, the administrators of NOAA and the EPA, and the chairman of the Council of Economic Advisers.
The group is referred to as the "God Squad" because it can vote to exempt a species from ESA protection even at the risk of that species' extinction, so long as most of the Squad agrees that the benefits to the nation outweigh the risk to the species and that no reasonable alternatives exist.
The God Squad hasn't been convened very often since it was established in 1978. It's ruled on proposed exemptions for just three species: the snail darter and the whooping crane in 1978, and the northern spotted owl in 1991. Those decisions weren't slam dunks for foes of species protection. The Committee declined to exempt the snail darter and offered only partial exemptions for the spotted owl: the only full exemption it's approved was for the whooping crane, but on the condition of a habitat mitigation agreement that made the exemption moot.)
Those three decisions over a 36-year period were the result of six petitions to convene the Committee. In other words, people hardly ever turn to the God Squad and when they do, the Committee only listens half the time. So one can reasonably interpret the irrigators' appeal to the governors to convene the God Squad as a bit of political theater.
But regardless of the outcome, it's almost certain that some in California will be watching the process very carefully. Even with a few late rains, there still isn't enough water for the state's salmon and steelhead even if our own irrigators don't get what they feel they deserve. And the God Squad has been suggested in recent years to keep pesky protected species like the salmon and the Delta smelt from interfering with the watering of cotton farms.
Though legal experts have so far dismissed the Committee as a solution to California farmers' water woes, it's next to certain that there are people in California wishing the Columbia-Snake River Irrigators Association well.