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The construction and operation of the Federal Columbia River Power System (FCRPS) have
reduced salmon and steelhead populations in the Columbia Basin. In 1991 the Snake River
sockeye became the first Pacific salmon stock listed under the Endangered Species Act. Since
then, operations of the FCRPS have had to be considered in the context of the Endangered
Species Act (ESA). This means that federal operators of the FCRPS, the Bureau of Reclamation,
the Bonneville Power Administration, and the Army Corps of Engineers, are required to consult
with the National Marine Fisheries Service (NMFS) on how federal actions may impact species.
At the end of the consultation, NMFS issues a biological opinion (BiOp) as to whether the action
would jeopardize the continued existence of a species or harm its critical habitat. As part of the
consultation process, mitigation measures are recommended by NMFS to avoid harm to listed
species. Protective measures for fish often come at a cost in terms of energy generation or
irrigation supply, and this tension between natural resources and energy production and irrigation
is at the heart of conflict in the Columbia Basin.
Beginning in 1992, a series of BiOps were issued by NMFS. Courts have found almost all of
them inconsistent with the ESA. The 2005 BiOp was remanded to NMFS, with the final, updated
BiOp released in May 2008. That BiOp is now the subject of a lawsuit. The court reviewing the
2008 BiOp had stated in 2007 that if the final document did not meet ESA standards, the court
might vacate the BiOp. This step would mean that any harm to a listed species by FCRPS
operations would be an unauthorized “take” under the ESA.
The Bonneville Power Administration has offered nearly $1 billion to four Indian tribes to resolve
the litigation. However, states, environmental groups, and fishing interests, who also have acted
as plaintiffs, were not included in the settlement.
This report supersedes CRS Report RL34453, Endangered Species Act and Legal Issues
Regarding Columbia Basin Salmon and Steelhead, by Nic Lane, Kristina Alexander, and Eugene
H. Buck.

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Background ..................................................................................................................................... 1
Factors in Salmon Decline............................................................................................................... 2
Federal Columbia River Power System (FCRPS) Protective Measures ......................................... 3
BiOp Litigation................................................................................................................................ 4
Non-BiOp ESA Litigation ............................................................................................................... 7
Conclusion....................................................................................................................................... 7

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Figure 1. The Columbia River Basin............................................................................................... 2

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Table 1. Chronology of Major ESA Actions and Litigation on Columbia Basin Pacific
Salmon and Steelhead Trout......................................................................................................... 9

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Author Contact Information .......................................................................................................... 14

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Federal dams have had an effect on salmon and steelhead populations in the Columbia Basin
since the 1938 construction of Bonneville Dam, the first Federal Columbia River Power System
(FCRPS) dam. (See Figure 1.) FCRPS now includes 29 federal hydropower dams in the
Columbia Basin1 that are operated by either the Corps of Engineers (Corps) or the Bureau of
Reclamation (Reclamation).2 The electric power from these projects is marketed by the
Bonneville Power Administration (BPA). These three agencies are known as the action agencies.
The action agencies stated that for the purposes of consultation under the Endangered Species Act
(ESA),3 they consider FCRPS to consist of 14 federal dams in the Columbia Basin that they have
designated as primary “mainstem” facilities.4
The Department of Commerce’s National Marine Fisheries Service (NMFS) has regulatory
authority for salmon and steelhead under the ESA. Additionally, the Department of the Interior’s
Fish and Wildlife Service (FWS) has regulatory authority under the ESA for resident fish in the
Columbia Basin (those that do not migrate to the sea as do salmon and steelhead).5 The ESA
requires that federal actions, such as the operation of FCRPS, must be reviewed to determine
whether they are likely to jeopardize the continued existence of threatened and endangered
species. This review, conducted by NMFS in the case of salmon and steelhead, results in a
biological opinion (BiOp) with either a jeopardy or no-jeopardy finding. New ESA listings or
new or changed federal actions may all be cause for ESA consultation and preparation of a BiOp.
To develop a BiOp, NMFS reviews a Biological Assessment submitted by the relevant action
agencies describing the proposed action that is the subject of ESA consultation. If NMFS finds
that specific actions will likely jeopardize listed species or destroy or adversely modify critical
habitat, it is required to propose in its BiOp reasonable and prudent alternatives (RPAs) to the
proposed action in order to avoid jeopardy. (See “BiOp Litigation,” below.)

1 Some sources state that the FCRPS includes 31 dams. Two federal dams, Lost Creek and Green Springs, are part of
the FCRPS but they are located outside the Columbia Basin in southern Oregon on the Rogue River.
2 See http://www.bpa.gov/power/pgf/hydrPNW.shtml.
3 P.L. 93-205; 16 U.S.C. §§ 1531 et seq.
4 BPA, Corps, and Reclamation, Biological Assessment for Effects of Federal Columbia River Power System and
Mainstem Effects of Other Tributary Actions on Anadromous Salmonid Species Listed Under the Endangered Species
Act, August 2007, p. 1-1. Hereinafter referred to as Biological Assessment. See
http://www.salmonrecovery.gov/Biological_Opinions/FCRPS/BA-CA/FCRPS/BA_MAIN_TEXT_FINAL_08-20-
07_Updated_08-27.pdf.
5 Id.
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Figure 1. The Columbia River Basin

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Columbia Basin salmon populations have declined due to a number of human actions other than
those of the FCRPS, including fishing, water pollution, and water withdrawals for irrigation.6
However, the construction and operation of the FCRPS has been a visible cause of salmon and

6 Robert T. Lackey, Denise H. Lach, and Sally L. Duncan, Policy Options to Reverse the Decline of Wild Pacific
Salmon, Fisheries, vol. 31, no. 7, (2006), pp. 344-351. Available at http://www.epa.gov/naaujydh/pages/staff/lackey/
pubs/SALMON-2100-PROJECT-SUMMARY-ARTICLE-REPRINT-2006.pdf.
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steelhead mortality and population decline for decades. Currently 13 evolutionarily significant
units (ESUs)7 of salmon and steelhead8 in the Columbia Basin are listed as threatened or
endangered under the ESA.9 Actions intended to aid the recovery of these stocks generally fall
into one of four categories: habitat, harvest, hatchery, and hydrosystem.10 Collectively, these four
categories are referred to as the All-H strategy.
Habitat actions focus on access to, and improvement of, habitat suitable for rearing of juvenile
salmon and spawning by returning adults. Habitat actions may provide access to previously
blocked areas, or create new areas suitable for rearing or spawning. Harvest actions focus on
limiting harvest or harm to listed species through such approaches as the use of selective fishing
gear and timing harvest periods to focus fishing on hatchery stocks. Hatchery efforts are intended
to increase the number of fish through artificial propagation. Some assert that hatchery production
reduces predator and harvest pressures on wild fish, while others are concerned that hatchery fish
compete with wild salmon and steelhead for food and habitat. Hatcheries also may alter the
genetic diversity of specific stocks.
Finally, hydrosystem actions are aimed at improving the survival of juvenile and adult salmon
and steelhead as they migrate past dams and through the reservoirs they create. Hydrosystem
actions include structural and operational changes at the dams, such as the addition of juvenile
bypass systems and surface-oriented passage routes; the collection and transportation of juveniles
in barges past the dams; the installation of structures to guide fish toward safer passage routes;
and water releases either to speed travel through the river or provide safer passage past a dam.
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Although some federal salmon and steelhead protection measures have been in place for nearly
70 years—Bonneville Dam was constructed in 1938 with a fish ladder to allow upstream passage
of returning adult salmon11—the Pacific Northwest Electric Power Planning and Conservation
Act of 1980 (Northwest Power Act) codified a fish protection program to mitigate losses
associated with the FCRPS.12 The first ESA listing of a Pacific salmon stock as endangered was
in 1991. This listing ushered in the era of action agency salmon recovery planning, BiOps, and
litigation that continues to the present.

7 Federal Caucus, Conservation of Columbia Basin Fish, Final Basinwide Salmon Recovery Strategy, Volume 1,
(December 2000). Available at http://www.salmonrecovery.gov/Biological_Opinions/FCRPS/all_h_strategy/docs/
2000_Final_Strategy_Vol_1.pdf. Hereinafter referred to as 2000 Salmon Recovery Strategy.
8 Salmon stocks are described in terms of evolutionarily significant units, or ESUs. NMFS defines an ESU as a
population or group of populations that is considered distinct for purposes of conservation under the Endangered
Species Act. To qualify as an ESU, a population must (1) be reproductively isolated from other populations within the
same species, and (2) represent an important component in the evolutionary legacy of the species. See
http://www.nwr.noaa.gov/Salmon-Recovery-Planning/Salmon-Recovery-Glossary.cfm.
9 See http://www.nwr.noaa.gov/Salmon-Hydropower/Columbia-Snake-Basin/Index.cfm.
10 2000 Salmon Recovery Strategy.
11 See http://www.nwcouncil.org/history/FishPassage.asp.
12 P.L. 96-501, 16 U.S.C. §839.
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The configuration and operation of the FCRPS dams is a particularly galvanizing issue between
proponents of hydropower development, irrigation, and river navigation and those supporting
commercial, sport, and tribal fishing as well as environmental conservation. Some actions to
benefit salmon, such as spilling water to help juveniles pass safely, come at a cost in terms of
energy production. Such actions may affect power rates in the region,13 creating an economic
incentive for some consumers and hydropower supporters to oppose an increase in fish protection
operations.
As an alternative to altering dam operations to make them more favorable to salmon, some parties
advocate partially or entirely removing four dams on the Lower Snake River in Washington. They
believe this is the only way to ensure survival of the Snake River salmon and steelhead ESUs.
Dam removal could also result in economic benefits to various fishing and recreation interests.
Proponents of dam removal argue that the four Lower Snake River dams do not produce a
significant amount of power but do cause significant harm to listed species. They claim that
removal of the Snake River dams would reduce federal expenditures and revitalize local
economies.14 Opponents of dam removal note that dam removal would only benefit four of the 13
listed salmon and steelhead ESUs in the Columbia Basin, and the federal agencies must focus
efforts on all of the basin’s ESUs. The action agencies and NMFS have stated that they do not
have the authority to remove the Lower Snake River dams; that would require congressional
action.15
In addition to FCRPS actions, Reclamation operates a number of smaller dams in the Upper
Snake River Basin whose primary purpose is to release water for irrigation and flood control (five
of these generate power and are a part of the FCRPS).16 None of the 13 listed Columbia Basin
salmon and steelhead stocks are found in the Upper Snake River Basin, because upstream fish
passage is completely blocked by Idaho Power Company’s Hell’s Canyon Project. However,
Reclamation’s operations in the Upper Snake River Basin do contribute to flow augmentation for
listed salmon and steelhead downstream. Dam operations and the water they provide are the
essence of the Upper Snake River disputes.
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BiOp decisions have been contentious since the first salmon ESU was listed in 1991. After a
species is listed as threatened or endangered, any federal action that may affect that species
requires consultation under Section 7 of the ESA.17 Therefore, each change of FCRPS operations
that may affect salmon or steelhead has required consultation under the ESA to determine if the
fish or its critical habitat would be put in jeopardy by those changes. (A history of major ESA

13 The retail rates for electricity in the Pacific Northwest are among the lowest in the nation. See
http://www.eia.doe.gov/fuelelectric.html.
14 Save Our Wild Salmon, et al., Revenue Stream, (November 2006), pp 1-2. Available at http://www.wildsalmon.org/
library_files/revenuestream8.pdf.
15 Bonneville Power Administration and Corps, Fact Sheet: Why Lower Snake River Dam removal is not in the Draft
2007 FCRPS BiOp, (October 2007). Available at http://www.bpa.gov/corporate/BPANews/Perspective/2007/
Snake_River_Dams/BiOp_Fact_Sheet_dam_removal.pdf.
16 See http://www.salmonrecovery.gov/Biological_Opinions/Upper_Snake/.
17 16 U.S.C. § 1536(a)(2).
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actions and litigation is presented in Table 1.) Each BiOp issued by NMFS for FCRPS has been
the subject of litigation.
A BiOp is issued in response to an action agency’s representation of how the action may affect
the listed species and critical habitat. The action agency submits a biological assessment to
NMFS. NMFS reviews the data and prepares the BiOp. The heart of a biological opinion is the
finding of jeopardy or no-jeopardy; that is, whether an agency action will jeopardize the
continued existence of a species or harm its critical habitat. If a jeopardy BiOp is issued, NMFS
must advise reasonable and prudent alternatives to avoid the harm. NMFS will issue an incidental
take statement allowing the action (using reasonable and prudent measures) and excusing any
take of listed species. Without the BiOp and the incidental take statement, the action agency risks
violating (and being prosecuted under) the ESA.
In 1994 the district court found NMFS had used misleading data when determining the baseline
numbers of fish in the no-jeopardy BiOp.18 The number of fish harmed by the agency action
could then appear to be smaller, when compared to the low baseline numbers. NMFS had
calculated the future success of the species based on fish counts from 1984 to1990. The years
between 1986 and 1990 were drought years, leading to atypically low numbers of fish that,
according to the court, skewed the data on which NMFS relied. By comparison, the 1992 BiOp
had used the years 1975 to 1990.
Litigation based on the subsequent 1994 to 1998 BiOp, issued in March 1994, claimed that the
NMFS no-jeopardy conclusion was flawed. The environmental plaintiffs argued that NMFS
incorrectly relied on the program to transport juvenile salmon downstream around the dams on
the Columbia River, releasing them below the Bonneville Dam, as the basis for the species not
being in jeopardy. However, instead of determining whether NMFS was justified in its actions,
the court ruled that the issuance of a 1995 BiOp rendered the action moot.19
The 1995 BiOp stands out for several reasons. First, it included a jeopardy opinion. Second, the
plaintiffs were customers of the hydroelectric dams, not environmentalists. And third, the BiOp
was upheld by the court. The plaintiffs claimed that the RPAs found necessary by NMFS as part
of the ESA consultation process were based on inappropriate data and failed to balance salmon
protection with the production of hydroelectric power.20 The court held that although there was
scientific uncertainty regarding the salmon decline, NMFS had not acted arbitrarily or
capriciously.
The next BiOp, the 2000 BiOp, included a no-jeopardy opinion. To reach this conclusion, NMFS
first found that eight salmon ESUs were likely to be jeopardized by the hydroelectric plants along
the Columbia River, and proposed RPAs that would mitigate the harm. NMFS issued a no-
jeopardy opinion. Environmental plaintiffs took issue with the mitigation measures, claiming that
the BiOp was based on future federal actions that had not undergone § 7 consultations, and also
on future nonfederal off-site actions that were not reasonably certain to occur.21 The 2000 BiOp
was invalidated by the court, but allowed to remain in place while NMFS prepared a new one.

18 Idaho Dept. of Fish and Game v. NMFS, 850 F. Supp. 2d 886 (D. Or. 1994).
19 American Rivers v. NMFS, 126 F.3d 1118 (9th Cir. 1997).
20 Aluminum Co. of America v. Bonneville Power Admin., 175 F.3d 1156 (9th Cir. 1999), cert. denied, 528 U.S. 1138
(2000).
21 National Wildlife Federation v. NMFS, 254 F. Supp. 2d 1196 (D. Or. 2003).
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Similarly, the 2004 BiOp was remanded to NMFS, but also allowed to remain in place while the
agency prepared a new one. The litigation over the 2004 BiOp began in 2005 and did not
conclude until 2008. In May 2005 a district court granted a preliminary injunction requiring
certain dams to allow water to flow past spill gates rather than through turbines during the
summer.22 The decision also found that NMFS used the wrong method for making the no-
jeopardy determination. The Ninth Circuit affirmed the lower court decision, but remanded the
action to have the district court decide if the injunction could be more narrowly tailored.23 On
remand, the district court again held that NMFS had incorrectly performed its BiOp and directed
the agency to produce a new one within a year, keeping the 2004 BiOp in place until the new one
was developed.24
The last word regarding the 2004 BiOp appeared to have been in April 2007, when the Ninth
Circuit affirmed the district court’s decision that the NMFS BiOp violated the ESA.25 The court
criticized the agency for not considering the aggregate effects on the species when making its
jeopardy determination:
instead of assessing whether the listed fishes would be jeopardized by the aggregate of the
proposed agency action, the environmental baseline, cumulative effects, and current status of
the species, NMFS segregated its analysis, first evaluating whether the proposed agency
action—consisting of only the proposed discretionary operation of the FCRPS—would have
an appreciable net effect on a species. It considered additional context only if it found such
an effect.26

The NMFS approach for the 2004 FCRPS BiOp—to find jeopardy only if the agency action’s
effect on fish was appreciably worse compared to a recent baseline—would allow the fish’s
environment to become incrementally worse with each agency action without finding jeopardy,
according to the court, thwarting the purpose of the ESA.27 Where the species’ environmental
baseline already jeopardizes a species, the Ninth Circuit held that an agency may not take action
that deepens the jeopardy by causing additional harm.28 The court also found fault with NMFS’s
failure to consider the recovery needs of the species within this BiOp, unlike earlier BiOps. In
April 2008 the Ninth Circuit amended its decision. It did not change its holding, but clarified that
a recent U.S. Supreme Court ruling did not alter its conclusion.29
The 2005 Upper Snake River BiOp was criticized for using a comparative analysis, rather than
an aggregate analysis, just as was done in the 2004 FCRPS BiOp.30 Like the 2004 BiOp, the 2005
Snake River BiOp was also remanded by the courts, but allowed to remain in place while NMFS
prepared a new one. As a result, the BiOps that are currently in place for both the Upper Snake

22 National Wildlife Federation v. NMFS, 2005 WL 1278878 (D. Or. May 26, 2005).
23 National Wildlife Federation v. NMFS, 422 F.3d. 782 (9th Cir. 2005).
24 National Wildlife Federation v. NMFS, 2005 WL 2488247 (D. Or. October 7, 2005).
25 NWF v. NMFS, 481 F.3d 1224 (9th Cir. 2007).
26 NWF v. NMFS, 481 F.3d 1224, 1232 (9th Cir. 2007).
27 NWF v. NMFS, 481 F.3d 1224, 1235 (9th Cir. 2007).
28 NWF v. NMFS, 481 F.3d 1224, 1236 (9th Cir. 2007).
29 NWF v. NMFS, 524 F.3d 917 (9th Cir. 2008) (holding that Nat’l Ass’n of Homebuilders v. Defenders of Wildlife, 127
S. Ct. 2581 (2007) did not affect the FCRPS BiOp as Congress imposed broad mandates, not specific actions, on the
action agencies in the case of FCRPS, as opposed to the statute in the Homebuilders case).
30 American Rivers v. NOAA-Fisheries, 2006 WL 1455629 (D. Or. May 23, 2006).
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River and the FCRPS were ruled invalid under the ESA. While the BiOps were being finalized,
the district court ordered that the Columbia River be operated pursuant to the 2008 Fish
Operations Plan.31 This plan specifies how the action agencies will manage the FCRPS during the
peak salmon migration times for juvenile and adult fish. New FCRPS and Upper Snake River
BiOps were finalized in May 2008.32
The 2008 FCRPS BiOp was challenged by environmental groups, anglers, an energy conservation
organization, and the State of Oregon as being arbitrary and capricious. The plaintiffs argued that
NMFS created a new method of making its jeopardy analysis that is “scientifically and legally
flawed.” NMFS said the BiOp “improve[s] the prospects for [the salmon’s] recovery” and was
based on “the best available science.”33
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Other litigation has affected the way the ESA has been applied to Columbia River anadromous
fish. When the Tenth Circuit Court of Appeals ruled that the FWS’s method of determining
critical habitat (CH) under the ESA was flawed,34 NMFS agreed to settle a suit that challenged its
CH determination for the Columbia River.35 This is because NMFS said it had used similar
methodology to FWS in determining how economic factors were used in its determination of CH.
Other lawsuits challenged which salmon and steelhead would be listed under the ESA. A lawsuit
claiming that four ESUs of West Coast Chinook should not be listed as threatened or endangered
species was able to delay the listing of those species while NMFS prepared its hatchery listing
policy (HLP).36 Once the HLP was prepared, a lawsuit by different plaintiffs led to the decision
that the HLP violated the ESA.37 That court also found that NMFS’s downlisting of the Upper
Columbia River steelhead from endangered to threatened by using the HLP violated the ESA by
not considering the best available scientific data.
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The most recent NMFS BiOp for FCRPS was finalized on May 5, 2008, and a legal challenge
was filed in June 2008.38 NMFS and the action agencies contend that the 2008 BiOp is
scientifically based and reflects substantial changes over past BiOps. The federal agencies
contend that many changes were made in system configuration, river operations, and research
efforts to guide and assess fish survival improvements. Referring to a quote from Judge Malcolm

31 National Wildlife Federation v. NMFS, No. 01-640-RE (D. Or. February 25, 2008). The 2008 plan is available at
http://www.salmonrecovery.gov/Biological_Opinions/docs/FOP_2008_final.pdf.
32 See https://pcts.nmfs.noaa.gov/pls/pcts-pub/pcts_upload.summary_list_biop?p_id=27149, and
https://pcts.nmfs.noaa.gov/pls/pcts-pub/pcts_upload.summary_list_biop?p_id=103108.
33 NOAA Press Release (May 5, 2008); see http://www.nwr.noaa.gov/Newsroom/Current/upload/05-05-2008.pdf.
34 New Mexico Cattlegrowers’ Association v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001).
35 National Association of Home Builders, Inc. v. Evans, 2002 WL 1205743 (D.D.C. April 30, 2002).
36 Common Sense Salmon Recovery v. Evans, 329 F. Supp. 2d 96 (D.D.C. 2004).
37 Trout Unlimited v. Lohn, 2007 WL 1795036 (W.D. Wash. June 13, 2007).
38 National Wildlife Federation v. NMFS, No. 01-640-RE (D. Or. filed June 17, 2008).
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Marsh in 1994 that FCRPS operation for salmon and steelhead protection “literally cries out for a
major overhaul,”39 the action agencies say they have made significant changes and will continue
this trend through 2017 with the new BiOp.40
The action agencies suggested an RPA to NMFS, which they say was developed in collaboration
with state and tribal entities with a stake in the outcome of the BiOp.
Critics of the new BiOp indicate that it does little to enhance dwindling salmon populations and
offers no significant changes. A lawsuit claims the BiOp ignores the data gathered by the Interior
Columbia Basin Technical Recovery Team, a multi-disciplinary science team assembled by
NMFS. An environmental group released the following statement about the 2008 BiOp:
Based on what we’re seeing today, the agencies didn’t get the message—or chose to ignore
it. Once you get past the bells and whistles, it’s clear this plan is about little more than
protecting the status quo, regardless of the harm the dams do to salmon and the communities
that depend upon them.41
When BiOps are compared to each other chronologically, the level of protective measures (such
as spill for juvenile passage) increases over time, and this holds true for the 2008 BiOp.42 It is
unclear how much of this increase is due to the series of court orders requiring additional
protective measures versus increased understanding of the best management practices for salmon
and steelhead recovery.
BPA has negotiated two memoranda of agreement (MOA) with four regional tribes to garner their
support for the new BiOp in exchange for the BPA’s funding habitat and hatchery projects to
benefit salmon, steelhead, and other fish over the next ten years.43 The New York Times reports
that BPA offered $900 million, with $50 million to be paid by the Army Corps of Engineers.44
There is no indication that the states, environmental groups, or fishing interests who have acted as
plaintiffs were part of the settlement.
Judge Redden stated in a December 2007 letter to the BiOp litigants that if the final BiOp is
legally flawed, he is unlikely to remand the document again but instead would vacate it.45 This
could leave operators of the FCRPS in violation of ESA for unauthorized “take” of listed species.
Further, the court also indicated that an unsatisfactory BiOp may result in a permanent injunctive
order directing the federal defendants to provide more spill and flow augmentation measures, and
obtain additional water from the Upper Snake and Columbia Rivers, including possible
drawdown of reservoirs to aid fish passage.

39 Idaho Dept. of Fish and Game v. NMFS, 850 F. Supp. 886, 900 (D. Or. 1994).
40 Biological Assessment, p. 1-8.
41 Available at http://www.wildsalmon.org/pressroom/press-detail.cfm?docid=766.
42 Telephone conversation by Nic Lane of CRS on February 13, 2008, with Mr. Scott Bettin, Fish and Wildlife
Administrator, BPA.
43 See http://www.salmonrecovery.gov/Biological_Opinions/FCRPS/2008_biop/ColumbiaBasinFishAccords.cfm.
44 W. Yardley, Deal Gives Money to Tribes to Drop Role in Fish Lawsuits, New York Times, April 8, 2008.
45 Letter from Judge James Redden to parties to the litigation dated December 7, 2007. Available at
http://www.salmonrecovery.gov/biological_Opinions/FCRPS/biop_remand_2004/docs.cfm.
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Table 1. Chronology of Major ESA Actions and Litigation on Columbia Basin Pacific
Salmon and Steelhead Trout
(cases are in bold)
Date
Action or Court Decision
Citation or Link
November 20, 1991 NMFS published determination that Snake River
56 Fed. Reg. 58619
sockeye salmon were endangered.
January 3, 1992
FWS published notice that Snake River sockeye
57 Fed. Reg. 212
salmon had been listed as endangered.
April 10, 1992
NMFS issued its first BiOp for operation of the

FCRPS.
April 22, 1992
NMFS published determinations that Snake River 57 Fed. Reg. 14653
spring/summer-run chinook salmon and Snake
River fall-run chinook salmon were threatened.
June 3, 1992
NMFS published a correction of its determination 57 Fed. Reg. 23458
that Snake River spring/summer-run chinook
salmon and Snake River fall-run chinook salmon
were threatened. In its correction, NMFS clarified
that the ESU includes populations in the
Clearwater River.
May 26, 1993
NMFS issued its second BiOp for operation of the
FCRPS.
December 2, 1993
The Corps, Reclamation, and BPA forwarded a

biological assessment to NMFS with a request for
consultation on the 1994-1998 operation of the
FCRPS.
December 28, 1993
NMFS published critical habitat (CH) designations 58 Fed. Reg. 68543
for Snake River sockeye salmon, Snake River
spring/summer-run chinook salmon, and Snake
River fall-run chinook salmon.
March 16, 1994
NMFS issued “Section 7 Consultation, BiOp,

Reinitiation of Consultation on 1994-1998
Operation of the Federal Columbia River Power
System and Juvenile Transportation Program in
1995 and future years.”
March 28, 1994
The 1993 BiOp was held arbitrary and capricious. Idaho Dept. of Fish and Game v. NMFS, 850 F. Supp.
The court found the BiOp used a baseline of
2d 886 (D. Or. 1994), vacated as moot by 56 F.3d
1984-1990 for data, even though 1986-90 were
1071 (9th Cir. 1995)
drought years, rather than the 1975-90 baseline
typically used. The court found the BiOp did not
include structural improvements to dams when it
included dams in the baseline.
August 18, 1994
NMFS published an emergency interim rule
59 Fed. Reg. 42529
wherein NMFS determined that Snake River
spring/summer-run chinook salmon and Snake
River fall-run chinook salmon warranted
reclassification from threatened to endangered.
September 28, 1994 Challenged three 1992 BiOps—FCRPS, and two
Pacific Northwest Generating Cooperative v.
harvest BiOps. The challenge to the FCRPS BiOp Brown, 38 F.3d 1058 (9th Cir. 1944), amending and
was declared moot due to 1993 consultation.
superseding 25 F.3d 1443
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Date
Action or Court Decision
Citation or Link
March 2, 1995
NMFS issued a revised BiOp for the FCRPS.

April 2, 1997
Suit based on 1994-98 BiOp was declared moot
American Rivers v. NMFS, 109 F.3d 1484 (9th Cir.
because the 1995 BiOp had already replaced it.
1997); amended 126 F.3d 1118 (9th Cir. Sept. 26,
1997)
August 18, 1997
NMFS published determinations that Upper
62 Fed. Reg. 43937 and 43974
Columbia River steelhead trout were endangered
and the Snake River Basin steelhead trout were
threatened. NMFS extended the deadline for a
final listing determination for Lower Columbia
River steelhead trout.
January 12, 1998
NMFS, citing improvements in the status of the
63 Fed. Reg. 1807
ESUs, withdrew its proposed rule to reclassify
Snake River spring/summer-run chinook salmon
and Snake River fall-run chinook salmon from
threatened to endangered.
January 21, 1998
Action agencies (Corps, BPA, and Reclamation)

transmitted their Biological Assessment for 1998
and Future Operation of the Federal Columbia
River Power System, Upper Columbia and Lower
Snake River Steelhead to NMFS.
March 19, 1998
NMFS published a determination that Lower
63 Fed. Reg. 13347
Columbia River steelhead trout were threatened.
May 14, 1998
NMFS issued its Supplemental BiOp to the March
2, 1995 BiOp.
February 5, 1999
NMFS proposed CH for endangered Upper
64 Fed Reg. 5740
Columbia River steelhead trout as well as
threatened Snake River Basin, Lower Columbia
River, Upper Willamette River, and Middle
Columbia River steelhead trout.
March 24, 1999
NMFS published determinations that Lower
64 Fed. Reg. 14308
Columbia River and Upper Willamette River
chinook salmon were threatened, and that the
Upper Columbia River spring-run chinook salmon
were endangered.
March 25, 1999
NMFS published a determination that Columbia
64 Fed. Reg. 14508 and 14517
River chum salmon were threatened. NMFS
published determinations that Middle Columbia
River and Upper Willamette River steelhead trout
were threatened.
May 10, 1999
Industrial users of BPA energy challenged changes Aluminum Co. of America v. Bonneville Power
imposed by the NMFS BiOp for Snake River
Admin., 175 F.3d 1156 (9th Cir. 1999), cert. denied,
sockeye and spring/summer and fall chinook. The 528 U.S. 1138 (2000)
court found BPA was not arbitrary in adopting the
RPAs in NMFS jeopardy opinion.
August 2, 1999
FWS published a notice that Lower Columbia
64 Fed. Reg. 41835
River and Upper Willamette spring-run chinook
salmon, the Columbia River chum salmon, and the
Middle Columbia River and Upper Willamette
River steelhead trout had been listed as
threatened, and that Upper Columbia River
spring-run chinook salmon had been listed as
endangered.
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Date
Action or Court Decision
Citation or Link
February 16, 2000
NMFS published CH designations for Lower
65 Fed. Reg. 7764
Columbia River, Upper Willamette River, and
Upper Columbia River spring-run chinook salmon;
Columbia River chum salmon; and Upper
Columbia River, Snake River Basin, Lower
Columbia River, Upper Willamette River, and
Middle Columbia River steelhead trout.
April 2000
Action agencies submitted their biological

assessment on the effects of the Willamette River
Basin Flood Control Project on ESA-listed species.
July 10, 2000
NMFS published §4(d) rule to regulate activities
65 Fed. Reg. 42422
affecting threatened species for Snake River Basin,
Lower Columbia River, Middle Columbia River,
and Upper Willamette River steelhead trout
(applicable Sept. 8, 2000); and for Snake River
spring/summer-run, Snake River fall-run, Lower
Columbia River and Upper Willamette River
chinook salmon, and Columbia River chum salmon
(applicable Jan. 8, 2001).
July 14, 2000
NMFS issued a BiOp on the impacts from

collection, rearing, and release of salmonids
associated with artificial propagation programs on
the Upper Willamette River spring-run chinook
salmon and winter-run steelhead trout.
December 21, 2000
NMFS issued a BiOp on operation of the FCRPS
Available at https://pcts.nmfs.noaa.gov/pls/pcts-
for salmon and steelhead.
pub/sxn7.pcts_
upload.summary_list_biop?p_id=12342.
April 30, 2002
Court accepted the consent order that vacated
National Association of Home Builders, Inc. v. Evans,
the CH designations for salmon and steelhead,
2002 WL 1205743 (D.D.C. April 30, 2002)
pursuant to 10th Circuit decision finding FWS did
not use economic factors correctly. [New Mexico
Cattlegrowers’ Association v. U.S. Fish and
Wildlife Service, 248 F.3d 1277 (10th Cir.
2001).]NMFS had used a similar method for the
Columbia River.
May 7, 2003
The court invalidated the 2000 BiOp and
National Wildlife Federation v. NMFS, 254 F. Supp.
remanded it to NMFS. The December 21, 2000
2d 1196 (D. Or. 2003)
BiOp’s no jeopardy determination was held
arbitrary and capricious because NMFS limited the
scope to mainstems of Columbia and Snake, and
relied on non federal mitigation.
September 29, 2003 In response to the April 30, 2002 court order
68 Fed. Reg. 55900
cited above, NMFS removed CH previously
designated for Lower Columbia River, Upper
Willamette River, and Upper Columbia River
spring-run chinook salmon; Columbia River chum
salmon; and Upper Columbia River, Snake River
Basin, Lower Columbia River, Upper Willamette
River, and Middle Columbia River steelhead trout.
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Date
Action or Court Decision
Citation or Link
June 14, 2004
NMFS proposed relisting Upper Willamette River, 69 Fed. Reg. 33102
Lower Columbia River, Middle Columbia River,
Snake River Basin, and Upper Columbia steelhead
trout; Upper Willamette River, Lower Columbia
River, Snake River fall-run, and Snake River
spring/summer-run chinook salmon; and Columbia
River chum salmon as threatened as well as Snake
River sockeye salmon and Upper Columbia River
spring-run chinook salmon as endangered (to
reflect how the inclusion of certain hatchery
stocks might influence listing determinations). In
addition, Lower Columbia River coho salmon
were proposed to be listed as threatened.
August 10, 2004
Plaintiffs challenged the March 1999 listing of four Common Sense Salmon Recovery v. Evans, 329 F.
Chinook salmon. The court stayed the listing of
Supp. 2d 96 (D.D.C. 2004)
Upper Chinook spring-run salmon, Puget Sound,
Lower Columbia River, and Upper Willamette
spring-run salmon, pending final hatchery policy
(due June 14, 2005).
November 2004
Reclamation submitted a biological assessment to Available at http://www.usbr.gov/pn/programs/
FWS and NMFS for operations and maintenance
UpperSnake/2004ba/index.html
actions at 12 federal projects in the Upper Snake
River basin.
November 30, 2004 NMFS reissued a revised BiOp on operation of
Available at https://pcts.nmfs.noaa.gov/pls/pcts-pub/
the FCRPS for salmon and steelhead.
sxn7.pcts_upload.summary_ist_biop?p_id=14756
March 2005
FWS issued a BiOp on operations and
Available at http://www.fws.gov/idaho/publications/
maintenance of the Reclamation Upper Snake
BOs/Final.pdf
River Basin Projects above Brownlee Reservoir.
March 31, 2005
NMFS issued a BiOp on operations and
Available at https://pcts.nmfs.noaa.gov/pls/pcts-
maintenance of the Bureau of Reclamation Upper pub/sxn7.pcts_
Snake River Basin Projects above Brownlee
upload.summary_list_biop?p_id=22363
Reservoir.
May 26, 2005
The court issued a preliminary injunction blocking National Wildlife Federation v. NMFS, 2005 WL
implementation of the 2004 BiOp, and ordering
1278878 (D. Or. May 26, 2005)
summer water through spillgates rather than
through turbines at certain dams.
June 28, 2005
NMFS relisted Upper Columbia River spring-run
70 Fed Reg. 37160
chinook salmon and Snake River sockeye salmon
as endangered as well as Lower Columbia
River/Southwest Washington coho salmon, Snake
River fall-run chinook salmon, Snake River
spring/summer-run chinook salmon, Lower
Columbia River chinook salmon, Upper
Willamette River chinook salmon, and Columbia
River chum salmon as threatened.
September 1, 2005
The appellate court affirmed the district court
National Wildlife Federation v. NMFS, 422 F.3d. 782
opinion of May 26, 2005, that the 2004 BiOp for
(9th Cir. 2005)
FCRPS was flawed. The Ninth Circuit found no
abuse of discretion in district court injunction, and
remanded the issue of whether the district court’s
preliminary injunction was narrowly tailored.
[District court decision = 2005 WL 1278878 (D.
Or. May 26, 2005).]
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Date
Action or Court Decision
Citation or Link
October 7, 2005
The court remanded the 2004 BiOp to NMFS,
National Wildlife Federation v. NMFS, 2005 WL
directing NMFS and action agencies to comply
2488247 (D. Or. Oct. 7, 2005)
with ESA, and to complete new BiOp within one
year. The decision kept the 2004 BiOp in place
while new one was being drafted.
January 5, 2006
NMFS relisted Snake River basin steelhead trout,
71 Fed. Reg. 834
Lower Columbia River steelhead trout, Upper
Willamette River steelhead trout, and Middle
Columbia River steelhead trout as threatened.
May 23, 2006
The court rejected the 2005 Upper Snake BiOp
American Rivers v. NOAA-Fisheries, 2006 WL
for using a comparative approach to determine
1455629 (D. Or. May 23, 2006)
jeopardy, saying the NMFS should have aggregated
the effects. The court found NMFS failed to
consider combined effects from proposed action
and existing baseline. The court clarified that
NMFS did not abuse its discretion in separating
Upper Snake from rest of Columbia, but that a
more cohesive strategy would occur if BiOp
considered them both.
September 26, 2006 The court remanded the 2005 Upper Snake BiOp American Rivers, Inc. v. NOAA-Fisheries, 2006 WL
but left it in place while NMFS prepared new one. 2792675 (D. Or. Sept. 26, 2006)
April 9, 2007
The Ninth Circuit affirmed the district court
NWF v. NMFS, 481 F.3d 1224 (9th Cir. 2007)
decision of Oct. 7, 2005, rejecting the 2004
FCRPS BiOp for failing to consider
nondiscretionary projects’ impacts, failing to
incorporate degraded baseline, and inadequately
evaluating impacts of dams. The court criticized
the use of comparative approach rather than
aggregate. [District court decision = 2005
WL2488247 (D. Or. Oct. 7, 2005).]
May 31, 2007
Action agencies provided a supplemental
Available at https://www.nwp.usace.army.mil/pm/e/
biological assessment to NMFS and FWS
reports/environmental/ba/Final_Will_Supp’l_BA.pdf.
evaluating the effects on ESA-listed fish in
operating the Willamette River Basin dams for
flood damage reduction and power generation.
June 13, 2007
The court found that NMFS’s downlisting of
Trout Unlimited v. Lohn, 2007 WL 1795036 (W.D.
Columbia River steelhead due to hatchery listing
Wash. June 13, 2007)
policy (HLP) violated the ESA. It set aside the HLP
for violating the ESA.
August 21, 2007
Action agencies issued a biological assessment for Available at http://www.salmonrecovery.gov/
effects of the FCRPS.
Biological_Opinions/FCRPS/ BA-
CA/FCRPS/BA_MAIN_TEXT_FINAL_08-20-
07_Updated_08-27.pdf

Reclamation issued a biological assessment on
Available at http://www.usbr.gov/pn/programs/
operations and maintenance of Upper Snake River UpperSnake/index.html.
Basin Projects above Brownlee Reservoir.

A Comprehensive Analysis of the FCRPS and
Available at http://www.salmonrecovery.gov/
Mainstem Effects of Upper Snake and Other
Biological_Opinions/FCRPS/BA-CA/CA/CA-
Tributary Actions was provided.
Final.pdf.
October 31, 2007
NMFS released a draft revised BiOp on operation Superseded by the final BiOp on operation of the
of the FCRPS and Upper Snake projects for
FCRPS, Upper Snake projects, and harvest of salmon
salmon and steelhead.
and steelhead, issued May, 5, 2008
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Date
Action or Court Decision
Citation or Link
February 25, 2008
The court ordered that the FCRPS would be
National Wildlife Federation v. NMFS, No. 01-640-
operated pursuant to the 2008 Fish Operations
RE (D. Ore. Feb. 25, 2008)
Plan until the 2008 BiOp was finished in August,
2008.
April 24, 2008
The court amended its April 2007 decision to
National Wildlife Federation v. NMFS, 524 F.3d 917
clarify that the Supreme Court decision in Nat’l
(9th Cir. 2008)
Ass’n of Homebuilders v. Defenders of Wildlife,
127 S. Ct. 2581 (2007) did not alter its ruling.
May 5, 2008
NMFS released the final BiOp on operation of the Available at http://www.nwr.noaa.gov/Salmon-
FCRPS, Upper Snake projects, and harvest of
Hydropower/Columbia-Snake-Basin/final-BOs.cfm
salmon and steelhead.
June 17, 2008
Suit filed challenging the May 2008 FCRPS BiOp.
National Wildlife Federation v. NMFS, No. 01-640-
RE (D. Ore. Jun. 17, 2008)
July 11, 2008
NMFS released the final BiOp on operation of the Available at http://www.nwr.noaa.gov/Salmon-
Willamette Basin Project.
Hydropower/Willamette-Basin/Willamette-BO.cfm

ȱȱȱ

Kristina Alexander
Eugene H. Buck
Legislative Attorney
Specialist in Natural Resources Policy
kalexander@crs.loc.gov, 7-8597
gbuck@crs.loc.gov, 7-7262

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