Columbia River litigation: Where are we now?

By Paul Arrington, Stacey Satterlee and Will Hart

If you’ve followed the longstanding litigation challenging operation of eight federal dams on the lower Columbia and Snake rivers, you’ve no doubt heard about the “Federal Commitments Document,” which outlines a series of studies and expenditures by the federal agencies over the next 10 years. 

Chances are, with all the back-and-forth about these commitments, you are wondering, “what is going on?” Do these commitments get us closer to breaching the dams on the lower Snake River?

Frankly, even for those of us who work these issues every day, it can be quite confusing.

In this article, we will attempt to unwind the confusion and provide some clarity on the situation (to the extent there is any).

The federal government, states, tribes and stakeholders have been embroiled in a cycle of litigation for decades. Like a broken record, the song just seems to keep playing in the following sequence:

• Step 1: The federal agencies issue biological opinions (BiOps) and environmental review (EIS) documents approving operations of the dams;

• Step 2: Certain groups, including Oregon, Washington, several tribes and conservation groups, challenge the federal agencies’ decisions in the Federal District Court in Oregon;

• Step 3: The court rejects the federal agencies’ decisions and remands (i.e. returns) the process back to the federal agencies to redo their analysis.

• Step 4: Repeat Steps 1-3.

This process has played out at least four times over the last two decades, with each round leading to the same result: more litigation.

In 2020, the federal agencies released their latest BiOp and EIS. As with prior decisions, these were immediately challenged in court. 

It appeared, at first glance, that this litigation might play out the same as prior rounds.

However, this time, something different happened; the Biden Administration chose to engage in the matter.

Initial efforts were led by the Council on Environmental Quality (CEQ), an office embedded within the executive office of the president that coordinates the federal government’s efforts regarding public health and the environment.

Subsequently, CEQ engaged the Federal Mediation and Conciliation Service (FMCS) to assist.

In July 2021, the parties agreed to stay (i.e. pause) the litigation so that they could attempt to negotiate a long-term resolution. The stay was ultimately extended and ran through Dec.15, 2023.

During the stay, those who were parties to the litigation were engaged in a mediation process. There were several concerns about this mediation process.

First, those who were not directly involved in the litigation, like the Idaho Water Users Association, Idaho Consumer-Owned Utilities Association, and Idaho Grain Producers Association, were not included in the mediation efforts.

Further, parties that support the river system, including the dams and fisheries, were often left out of substantive conversations about possible solutions and paths forward and were given inadequate time to respond to substantive proposals.

On Dec. 13, 2023, a group of plaintiffs, joined by the federal government, announced that they had reached an agreement to: (1) extend the stay for an additional five years; and (2) engage in a list of actions, outlined in the “Federal Commitments Document” (FCD).

The stay was granted, meaning that the litigation is on hold until January 2029.

So, what exactly does this Federal Commitments Document do? Does it require that the dams on the lower Snake River (the LSRD) be breached? Will it impact navigation or hydropower generation on the federal system?

Frustratingly, there are many questions that cannot be answered at this time.  Here is what we do know. The FCD:

• Recognizes that only Congress is vested with the authority to breach the LSRD. However, the actions required by the FCD are intended to replace or mitigate the services from the LSRD in preparation for an eventual decision by Congress to breach.

• Creates a “Pacific Northwest Tribal Energy Program” to provide the region’s tribes with “energy sovereignty.” This includes assistance in the development of tribal energy resources that will be used or sold by the tribes. While the document includes this provision, there is little to no detail or additional information on what this energy program will look like.

• Directs funds for studies of the region’s energy supply needs and possibilities for replacement power, transportation, recreation, and water supply, and a study to replace or mitigate those services “should Congress authorize dam breach.” These studies are in their early stages and are expected to be completed by early 2025.

• Commits an additional $300 million in electric customer funds through the Bonneville Power Administration (BPA) to support salmon recovery efforts. Due to this financial commitment and the uncertainties listed above, the Public Power Council has estimated that power rates could increase 5% to 40% over the next 10 years.

With all the confusion in this process, one thing is for certain: the need to stay engaged on this issue has never been stronger.

Idaho relies on the services provided by this infrastructure. Whether it be low-cost, reliable, and on-demand hydropower or low-carbon emission, low-cost, reliable access to world markets, our communities and industries need these systems.

(Paul Arrington is executive director of the Idaho Water Users Association, Stacey Satterlee is executive director of the Idaho Grain Producers Association, and Will Hart is executive director of the Idaho Consumer-Owned Utilities Association.)