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Breach a Dam? Legal Factors Relevant to Decisionmaking

William W. Kinsey, Proceedings of 45th Annual Rocky Mountain Mineral Law Institute (1999)

The Army Corps of Engineers and the Bureau of Reclamation operate several hydroelectric projects in the Columbia River Basin, from which the Bonneville Power [23-4] Administration (BPA) markets the generation of power.1 Twenty-nine federal dams that generate power constitute the Federal Columbia River Power System (FCRPS).2

Due to natural causes and increased human activities in the Pacific Northwest and the Pacific Ocean since the 19th century, populations of anadromous fish in the Columbia River Basin have declined. In response, the National Marine Fisheries Service (NMFS) recently listed several species of anadromous fish as threatened or endangered under the Endangered Species Act, including Snake River sockeye and Snake River spring/summer and fall chinook.3

Anadromous fish are vulnerable to human-caused mortality as they hatch in streams and rivers in the spring and summer, remain in fresh water for varying periods of time, and migrate as juveniles downstream to the ocean, where they spend periods of years until they return upstream in the spring, summer, and fall to their birthplaces to spawn.4 The listings compel the Pacific Northwest to identify and assess options for reducing mortality to these species and reverse their declines.

Dams in the Columbia River Basin have caused significant mortality as juvenile anadromous fish, or smolts, pass