When Washington’s congressional delegation killed Idaho Republican Sen. Jim Risch’s efforts to begin a regional dialogue to seek a resolution to the Columbia and Snake River salmon debate, they were confident that U.S. District Judge James Redden might accept the compromise forged between federal agencies, three states and most tribes.

Risch’s idea was to begin a process that was centered in the region, not driven by a judge or the new Democratic administration. Even some Idaho interests weren’t very excited especially water users who thought that maybe because of the strong support of their partners in the water rights agreement, the Nez Perce, they didn’t have to worry about the Judge coming back for more water.

Redden sent everyone a letter Monday that set down the law.

He said he didn’t buy the Bush Administration’s “trending toward recovery standard” for deciding if salmon were jeopardized by the dams.

“Even if "trending toward recovery" is a permissible interpretation of the jeopardy regulation, the conclusion that all 13 species are, in fact, on a "trend toward recovery" is arbitrary and capricious because:

(1) Federal Defendants improperly rely on speculative, uncertain, and unidentified tributary and estuary habitat improvement actions to find that threatened and endangered salmon and steelhead are, in fact, trending toward recovery;

(2) Federal Defendants' own scientists have concluded that many of the proposed estuary mitigation measures (and the assumed benefits) are unsupported by scientific literature;

(3) Federal Defendants assign implausible and arbitrary numerical survival improvements to tributary habitat actions, even though they have not identified specific habitat actions beyond 2009, and there is no scientific data to support those predictions;

(4) The biological opinion does not identify any performance standards to measure whether the proposed habitat improvements actually result in the predicted survival improvements. which are necessary to ensure that the species avoid jeopardy (i.e., "trending toward recovery");

(5) The mop does not articulate a rational contingency plan for threatened and
endangered species in the event that the proposed habitat improvements and other remedial actions fail to achieve the survival benefits necessary to avoid jeopardy; and

(6) Federal Defendants do not provide a rational explanation, based on the best available science, for their decision to curtail both spring and summer spill."

Basically Redden says the compromise the federal government made with the tribes and the states falls far short of what will be needed to meet the Endangered Species Act.

"Federal Defendants have spent the better part of the last decade treading water, and avoiding their obligations under the Endangered Species Act…" Redden wrote. "Only recently, have they begun to commit the kind of financial and political capital necessary to save these threatened and endangered species, some of which are on the brink of extinction. "

"We simply cannot afford to waste another decade," Redden wrote.

In addition to keeping dam breaching on the table, Redden urged the administration to look for additional flows of water from the Snake and Columbia River, a devastating blow to Idaho and Montana, He also urged that federal agencies continue to spill water over eight federal dams on the two rivers, which dramatically reduces the revenue from electric power generated by the dams.

The spilling itself could cost more money than removing the dams and building the rail lines and other measures needed to make farmers and shippers whole.

The region’s leaders now have to decide how to move forward. Will Risch’s community-based talks be revived, perhaps including heavy hitters like Sen. Mike Crapo and Washington’s senators? Will the Obama administration take the lead?

Will the discussion move beyond salmon and even the Endangered Species Act to look at climate change and energy?

Stay tuned.