The Environmental Baseline vs. The Proposed Action: How Are the Ongoing Effects of Existing Dams Properly Considered?

Why is the environmental baseline so important in an Endangered Species Act (ESA) section 7 consultation for a dam relicensing action?

It is generally conceded that any impact from the future ongoing operation of a dam is properly considered as part of the proposed action. There is ongoing debate, however, over whether the continued effects of an existing dam (such as the blockage of upstream fish habitat or the predation issues in a reservoir created upon dam construction) should be considered part of the environmental baseline to which proposed dam relicensing should be compared, or part of the proposed action itself.

NOAA Fisheries has stated in the Federal Columbia River Power System (FCRPS) proceedings before Judge Redden that the FCRPS structures and their effects are part of the environmental baseline because the Corps of Engineers and Bureau of Reclamation lack the discretion to do anything but continue to operate the dams.[1] The Services continue to argue, however, that in performing a jeopardy analysis in a Federal Energy Regulatory Commission (FERC) relicensing context, they may properly consider the ongoing effects to listed species from the continued existence of a dam.

Distinguishing between the environmental baseline and the proposed action when considering the ongoing effects of an existing dam is critical to (1) the results of the Services’ jeopardy analysis, and (2) what the Services can require in response to any perceived impacts. Including ongoing dam effects as a project impact has the effect of increasing the total perceived impacts of the proposed action, which could make it easier for the Services to conclude that the action is likely to “appreciably reduce” the species’ likelihood of survival (a.k.a. jeopardy). In addition, by constructing the proposed action to include the ongoing effects of an existing dam, the Services increase the range of measures that they can require a licensee to take in response to perceived impacts. For example, in a “no jeopardy” biological opinion, the terms and conditions of the applicable Service’s incidental take statement could require the licensee to implement minimization measures designed to address the effects of existing dam facilities. Even more importantly, in a “jeopardy” biological opinion, the Service could propose a “reasonable and prudent alternative” to address the perceived jeopardizing effects of dam facilities. Neither of these measures are appropriate if the Services are properly considering existing dam facilities and their ongoing effects as part of the environmental baseline rather than the proposed action.

This paper presents a discussion of how the ongoing effects of existing dams ought to be considered in a biological opinion. It concludes that the Services’ approach of considering such effects as part of the proposed action rather than the environmental baseline is not supported by the ESA, the Services’ own regulations and policy, or case law.

Discussion

Including the existing dams as part of the proposed action is contrary to the ESA and its express consultation exemption. First, the ESA’s section 7 consultation requirement is not retroactive to facilities constructed prior to its enactment. Such facilities and their effects should therefore not be considered part of a proposed action. More specifically, the ESA expressly exempts from the consultation initiation requirements construction projects that began prior to November 10, 1978. See 16 U.S.C. § 1536(c); see Idaho Department of Fish and Game v. National Marine Fisheries Service, 850 F.Supp. 886, 894 (D. Ore. 1994) (although there is no temporal limitation on what may be considered as a reasonable and prudent alternative, the ESA “exempts any construction projects predating November 10, 1978 from consultation requirements under § 7(a)(2)…”). Based on this exemption, dams constructed before November 10, 1978 cannot be considered part of a proposed action, and therefore can only be analyzed as part of the environmental baseline.

This conclusion is supported by the Services’ own regulations and policy. The Services’ joint consultation regulations require the “environmental baseline” section (to which the proposed action is compared) to include:

the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.

See 50 C.F.R. § 402.02 (emphasis added). Clearly, this definition of environmental baseline intended to capture ongoing (“present”) effects of previously-constructed dams.

Just as clearly, the Services’ joint Endangered Species Consultation Handbook describes the environmental baseline as:

an analysis of the effects of past and ongoing human and natural factors leading to the current status of the species, its habitat (including designated critical habitat) and ecosystem.

…The baseline includes State, tribal, local and private actions already affecting the species or that will occur contemporaneously with the consultation in progress.

Handbook at 4-22 (emphasis added). A biological opinion’s environmental baseline section should therefore discuss both past and ongoing effects of previously-constructed dams. Present or ongoing effects are not properly considered as effects of the proposed action.

The Handbook devotes much time to explaining how an existing dam is considered part of the baseline when the Services consult on a later, related action:

Ten years after construction of the dam, a federal permit is needed to add a second turbine to the dam to increase power generation. The addition of the turbine, as the proposed action, is now the [proposed action]. The pre-existing dam has independent utility without the new turbine and therefore is not interrelated to, or interdependent with, the proposed action. Ongoing effects of the existing dam are already included in the Environmental Baseline and would not be considered an effect of the proposed action under consultation. …

ESA Consultation Handbook at 4-27 (emphasis added).

The Handbook further clarifies that, for ongoing water and hydropower projects, the proposed action should include only ongoing project operations.

The total effect of all past activities, including effects of the past operation of the project, current non-Federal activities, and Federal projects with completed section 7 consultations, form the environmental baseline. To this baseline, future direct and indirect impacts of the operation over the new license or contract period, including any interrelated and interdependent activities, any reasonably certain future non-Federal activities (cumulative effects), are added to determine the total effect on listed species and their habitat.

ESA Consultation Handbook at 4-29 (emphasis added). Significantly, while the Handbook uses broad language to describe the environmental baseline (“all past activities”), it describes the proposed action narrowly as the impacts of the “operation” of the project.

Some may argue that the existence of a dam is an interrelated or interdependent action that must be considered by the Services in performing their jeopardy analyses.[2] The Handbook makes clear, however, that if a project would exist independent of the proposed action, it cannot be considered “interrelated” or “interdependent,” even if the proposed action is required to bring the existing facility into lawful operation.

Later, a new federal safety law requires the dam operator to construct a fuse plug on an existing spillway which improves response to emergency flood conditions. Construction of the fuse plug is now the [proposed action]. Again, the existing dam is not interdependent or interrelated to the proposed fuse plug because it does not depend upon the proposed action for its existence. That is, the test is not whether the fuse plug in some way assists or facilitates in the continued operation of the pre-existing project, but instead whether the water project could not exist “but for” the fuse plug. Because the answer is that the project would exist independent of the fuse plug, the operation of that project is not interrelated or interdependent. Accordingly, the biologist would not consider the effects of the dam to be effects of the [proposed action] under consultation….

ESA Consultation Handbook at 4-27 (emphasis added).

NOAA Fisheries has in the past considered the effects of an existing dam to be part of the environmental baseline. For example, in a case involving proposed dam reconstruction, NOAA Fisheries explained that it had limited the scope of its biological opinion to construction activities within the existing project footprint:

[T]he dam has already been constructed, and its existence is an element of the environmental baseline. The ongoing effects of this dam will continue regardless of the proposed [Safety of Dams Act] project and therefore, do not satisfy the 'but for' test. Thus, the maintenance and operations of the existing dam are not interrelated and interdependent with the SOD action.’

Confederated Tribes And Bands Of The Yakama Nation v. McDonald, 2003 WL 1955763 at 17 (E.D. Wa. 2003) (unpublished opinion). In its biological opinion, NOAA Fisheries concluded that “‘other than these temporary effects of [re]construction, the proposed action adds nothing to the existing environmental baseline in the action area.’” Id. *11.

In that case, the district court upheld NOAA Fisheries’ consideration of the effects of the existing dam as part of the environmental baseline.

[NOAA Fisheries] acted reasonably in light of the plain language of 50 C.F.R. § 402.02 that “[t]he environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area....” The “proposed action” [NOAA Fisheries] was asked to evaluate was modification of a dam which has stood in the same place since 1917. It evaluated the past and present impacts of that baseline, plus impacts from the proposed dam modification and concluded MCR Steelhead would not be jeopardized, notwithstanding the problems already inherent in the environmental baseline (i.e., the fish cannot pass upstream beyond the dam). There was no bad faith or improper purpose by [NOAA Fisheries].

Id. 17; id. at 14 (“The existing dam is part of the ‘environmental baseline.’”); id. (“Once again, however, there is no ‘new’ dam. There is an existing dam and an existing problem which is part of the ‘environmental baseline’ referred to in ESA regulations.”).

Similarly, in Idaho Department of Fish and Game v. National Marine Fisheries Service, 850 F.Supp. 886 (D. Ore. 1994), the district court overturned NOAA Fisheries’ biological opinion on the effect of the FCRPS operations on endangered salmon populations, but noted that:

there is no dispute that dam existence is properly part of the "environmental baseline," as defined by 50 C.F.R. 402.02. The idea that the dams are immutable and uncontrollable like the weather ignores decades of fish protection improvements (such as bypass facilities and ladders) and other structural and operational enhancements.

Id. at 894 (emphasis added).

Closely analogous case law also supports consideration of any ongoing impacts from the existence of the dams as part of the environmental baseline rather than the proposed action. In particular, in American Rivers v. Federal Energy Regulatory Commission, 201 F.3d 1186, 1197 - 1201 (9th Cir. 2000), the Ninth Circuit upheld FERC’s use of an existing project baseline for Federal Power Act (FPA) and National Environmental Policy Act evaluation purposes. In doing so on FPA grounds, the court intoned:

It defies common sense and notions of pragmatism to require the Commission or license applicants to “gather information to recreate a 50-year-old environmental base upon which to make present day development decision.” The past fifty years of development in the McKenzie River valley has reconfigured its environmental makeup, introducing changes that include differences in land use, water flows, water quality, river geomorphology, fish species composition, and fishery management practices.

Id. at 1196 (finding support for this position in congressional reports noting that FERC must take into account “existing structures and facilities” in relicensing proceedings). Faced with many of the same changes in most dam relicensing proceedings, it makes equally little sense to attempt to reconstruct for ESA evaluation purposes a watershed as it existed historically.

The American Rivers court did find some use for an evaluation of historical conditions:

To the extent a hypothetical pre-project or no-project environment can be recreated, evaluation of such an environment against current conditions at best serves to describe the current cumulative effect on natural resources of these historical changes.

Id. As in American Rivers, to the extent a hypothetical pre-project environment can be recreated in a hydropower relicensing context, evaluation of that environment at best serves to describe the total cumulative effect of human actions on listed species over time, which is precisely what an environmental baseline is intended to do.