ENSURING COMPLIANCE WITH THE WATER QUALITY STANDARD FOR TEMPERATURE IN THE COLUMBIA BASIN: STATE CERTIFICATION OF FEDERAL DAMS If incidental take statements are indeed permits or licenses, and there is every indication that they are, NOAA (and the Corps) have violated the Clean Water Act by not obtaining section 401 certifications prior to issuing (and operating under) ITSs for past Federal Columbia River Power System (FCRPS) BiOps.
Under the Northwest Power Act, the Columbia River Basin Fish and Wildlife Program addresses all fish and wildlife impacted by the Federal Columbia River Power System, and under the Endangered Species Act, agencies are guided by the biological opinions developed by the National Marine Fisheries Service and the U.
302) Although the ESA regulations required NOAA to assess the biological impact of Federal Columbia River Power System (FCRPS) operations on "all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action," (303) the agency claimed that only the mitigation measures within the immediate action area--the mainstem Columbia and Snake Rivers--were subject to the ESA's consultation requirements.
Much of this change, though certainly not all, has been caused by the operation of the Federal Columbia River Power System (96)--the system of large hydropower dams on the Columbia and Snake River mainstems.
104) Similarly, a biological opinion prepared by NMFS in 1992 on the operations of the Federal Columbia River Power System barely mentioned irrigation(105) and contained conservation recommendations that are at best described as aspirational.
77) The fishery agencies concluded that barge and truck transport of juvenile salmon could not overcome poor river conditions created by the operation of the federal Columbia River Power System and noted that transportation had failed to halt the decline of the Snake River species.
