Judge Rules That Corps "Erred" Over Water Quality Issues
 Water Forecast Worsens: Hydro/Fish Debates Continues
 Spring Harvest Rates Boosted To Nab More Chinook
 Catholic Bishops Release Pastoral Letter On Columbia River
 BPA To Use F&W Contingency Credits To Pay Treasury
 JUDGE SAYS CORPS ERRED OVER WATER QUALITY ISSUES
A federal judge in Portland ruled Feb. 16 that the Corps of Engineers made a "clear error of judgment" by not addressing water quality compliance issues under the Clean Water Act in its last Records of Decision implementing the 1995 and 1998 hydro BiOps. Judge Helen Frye granted a motion for summary judgment from the plaintiffs, comprised of various conservation and fishing groups, and denied defendant COE's and intervenor-defendants' motion for summary judgment.
The judge told the agency to replace the 1998 ROD with a new decision within 60 days that "addresses its compliance with its legal obligations under the Clean Water Act."
Frye's decision is the latest twist in a lawsuit filed by environmental groups and commercial fishermen in March 1999 that accused the Corps of violating CWA dissolved gas and temperature standards in its operation of the four federal dams on the lower Snake River. The Corps said a new ROD will be signed soon to implement the latest BiOp, a document that should address the plaintiffs' concerns.
But that wasn't good enough for Judge Frye. In her opinion, she admitted that the case could become moot when the new ROD is signed, but for now, "a stay or dismissal is not warranted by the facts or the law. It is not a waste of judicial resources to resolve this case, which raises significant issues and has been pending for two years."
She said "it is not possible to conclude that the Corps complied with its legal obligations under the Clean Water Act when it made the decisions in the 1995 Record of Decision and the 1998 Record of Decision based upon a review of the decisions themselves." Her opinion noted that the RODs "do not explicitly address the legal obligations of the Corps under the Clean Water Act."
The RODs call for spilling water at dams, which can violate state dissolved gas standards, although these have been waived annually. The Corps maintained that its operations did not cause violations, including water temperatures above the 68-degree F standard. Rather, the high temperatures resulted from the fact of the dams' existence.
The court said the Corps was not solely responsible for water quality violations in the Snake, but was convinced that the agency's hydro operations had a "significant effect" on exceedences of the standards.
Dam breaching advocates were quick to hail the decision. "The obvious solution is to remove the dams," American Rivers spokesman Rob Masonis told the Tri-City Herald.
But others were more circumspect. "As the Army Corps plans its operations of these dams for the next decade, they must now preserve both water quality and salmon," said Tim Stearns of the National Wildlife Federation, one of the plaintiff groups.
Stoel Rives attorney Beth Ginzburg, who represented defendant-intervenor Potlatch Corp., said Frye's decision "wasn't that big a deal," pointing out that the Corps had presented an affadavit stating that the CWA concerns would be addressed in its upcoming ROD.
The new 10-year BiOp is expected to be made official in an ROD by the end of March, according to the Corps' Doug Arndt. It contains an entire section on developing ways to meet temperature standards in the lower Snake and calls for creation of a new water quality team to integrate the goals and requirements of the CWA and ESA. The BiOp also calls for a new modeling effort to understand thermal characteristics in the reservoirs and develop them to serve as planning tools and predict real-time outcomes of operations.
Will that be enough to satisfy Judge Frye? "We will take advantage of the window of opportunity [60 days] in the ruling to frame an effective response," Corps spokesman Dutch Meier told NW Fishletter. He said his agency is working with the Department of Justice and other Corps partners to answer the judge, but he refused to speculate whether the Record of Decision would still be signed by the end of March.
Attorney Ginzburg thought it would be signed on schedule, but noted that defendants had other questions about Frye's decision. "There was no need for her to do what she did," said Ginzburg. She said Frye lacked the authority to make the decision under both the CWA and Administrative Procedures Act. She said the ruling might be appealed, but no decision has been made on that course of action.
Plaintiff groups included the National Wildlife Federation, Sierra Club, Idaho Rivers United, American Rivers, Pacific Coast Federation of Fisherman's Associations, Institute for Fisheries Resources, Washington Wildlife Federation and the Idaho Wildlife Federation.
The defendant agency, the Corps of Engineers, was supported by intervenors Potlatch Corporation, Northwest Pulp and Paper Association, Inland Ports and Navigation Group and the Columbia River Alliance.
When all was said and done, the scientific debate over temperatures on the lower Snake and what can be done about them played no role in the decision. In a 1991 study, consultant Don Chapman found that adult salmon migration in the Snake slows significantly for steelhead when the inriver temperature exceeds 72°F, and doesn't improve much until the water cools to 68°F. But his study pointed out that from 1962 through 1989, temperatures at Ice Harbor on the Snake trended downward.
"This surprised us," said the report, "since several [of the] most recent years have been low flow years. During the 1960s, [water] temperatures were higher than in the late 1980s, even though August flows were higher." The study said that while low flows can result in increasing temperatures, "air temperature regimes may be more important in determining future water temperature as irrigation withdrawal increases."
The study also pointed out that since Brownlee and Hells Canyon dams were constructed, a trout fishery developed below those projects, "which indicates a cooler water regime during summer than formerly existed."
Water temperatures routinely hit above 68
degrees in BC's undammed Fraser River,
home to millions of salmon.
Chapman's speculations seem to be borne out by an aerial infrared temperature study conducted in 1999 for Idaho's Department of Water Quality. Accurate to within 0.1°F, the study found that when the air temperature was 85°F and no water was added from Dworshak, the mainstem water temperature met the 68°F standard. When the air temperature was 95°F to 100°F and flow was augmented with cool Dworshak water, temperatures in the Snake met the CWA standard below the confluence of the Clearwater and Snake. But under those conditions, the study found that tributaries like the Salmon River were as warm or warmer than the mainstem Snake farther upstream, around 71°F to 72°F. -Bill Rudolph
 WATER FORECAST WORSENS; HYDRO/FISH DEBATE CONTINUES
With a mid-month water forecast that's more pessimistic than that released just a few weeks ago, fish and hydro managers met Feb. 15 to discuss contingency plans for operating the hydro system over the next couple months. The three-hour Technical Management Team/Implementation Team joint session tried to develop both short- and long-term guidance for managers that would maximize water for fish migration later in what is turning out to be one of the driest years on record. Forecasters originally pegged the water supply at The Dalles at 63 percent of normal; now, it's been downgraded to 59 percent.
Complicating the decision was an ongoing power emergency that BPA first announced that Monday afternoon, when the system was cranked up to meet load and the agency was draining regional storage reservoirs in Montana and Idaho faster than ever--save Libby, where Canadians offered water to keep levels up for work being done on their side of the border.
The immediate question, said BPA's TMT representative Robyn MacKay, was where to back off first when demand went down: on the Snake River side or the mainstem. Since that weekend was expected to be cold, BPA still wasn't sure it could reduce generation over the next few days. MacKay said flows at Bonneville Dam had exceeded 130 kcfs, but managers were trying to get it back to 130 kcfs because draft limits in the lower river were being violated.
Hydro managers had two concerns, MacKay reported. The first was Grand Coulee: if daily drafts exceeded 1.5 feet, then structural problems could occur in the reservoir. Secondly, managers were hoping that running Coulee hard wouldn't lead to "a reliability problem in the future."
Corps of Engineers representative Cindy Henriksen said operations could be similar to 1977, the basin's worst water year. Such a situation, with minimum flows from February to June, would mean no refill of headwater projects or Coulee. But if the water supply improved, Henrikson said, some flexibility for shaping flows could develop.
Both Idaho and Nez Perce reps recommended saving Dworshak water for later in the year and reducing flows there first in the short term. Dworshak Reservoir lies on the Clearwater River, a major tributary of the Snake. NMFS' Jim Ruff also supported that position. The tribe recommended using water from Brownlee to augment spring flows.
Montana representative Jim Litchfield said he hoped a balanced use of water could be implemented. Otherwise, his state won't have any water left to augment Columbia flows come summer. He opted for a more "proportional" draft and told others they should expect a lot of pressure from the "south" all summer to help with power needs there.
BPA's Dan Daley said some basin irrigators have approached his agency about reducing their load through less pumping. Some farmers are cutting production due to low commodity prices. But Daley said there were other questions to answer--namely, about the possibility of deleterious effects on the agricultural community from cutting load. He said that didn't mean any more water would be freed up for uses other than power, but the issue was pretty "speculative" at this time.
With low flows expected, Litchfield suggested barging fish from McNary Dam might help juvenile fish. BPA's Bill Maslen said information in NMFS' White Paper on transport countered arguments against it, voiced by USFWS' Howard Schaller. Washington rep Jim Nielsen said the barging "was definitely something we need to look at."
Ruff said NMFS scientists in Seattle were looking into the value of barging from McNary, where upriver Columbia fish could be transported downstream.
Low flows in the Snake could mean little or no spill at all from lower Snake dams this year, but BPA's Daley said it may have to be reduced, though "it won't be strictly an economic decision." The low flows could max out the transport strategy, called for if flows fall below 85 kcfs in the spring. Maximum transport could put more than 90 percent of the spring migrants in barges this year.
Other voices asked for NMFS input, but Ruff said that won't be ready for another week. The Power Planning Council staff will also have an issues paper ready soon, said NWPPC staffer Bruce Suzumoto, that will contain recommendations for operations over the next few months.
The group met again Feb. 21 with several proposals on the table (They are available on the TMT's Web site.). Federal agencies had their own list of priorities. For operations through March, they suggested base flows up to 130 kcfs at Bonneville and maintenance of a 11.7-foot tailwater elevation to keep nearby chum redds covered. Any requirements to boost flows above 130 would require an emergency declaration.
Grand Coulee would be operated at or above elevation 1225 feet through March, with operations planned to avoid daily drafts of more than 1.5 feet. Dworshak would maintain minimum release levels to maximize refill for summer flow augmentation. To balance operations, headwater storage would be used. Bull trout issues would be considered, but ramping rates for Montana reservoirs could be exceeded in power emergencies.
The feds call for power/chum flows to head the priority list until April 10 or when fish emerge. Next is a full fish transport program in the Snake and from McNary Dam this spring. Third on the list is spring spill operations at mainstem dams, then balancing summer flow augmentation (June 30 refill) and spring spill. Next in importance comes summer spill, Vernita Bar flows, and spring flow augmentation. They also called for monitoring and evaluating water quality and applicable standards to help determine the priorities.
Idaho and Montana issued a joint plan that calls for managing flows, spills and generation to speed adult passage and reducing outflows from headwater storage to store water for bull trout later in the summer. They also called for maximizing fish transport at both Snake projects and McNary Dam. They called for no spill at headwaters projects and spill only at night at non-storage projects, at reduced levels and for less time.
The Columbia River Inter-Tribal Fish Commission issued recommendations that call for Bonneville spring flows to stay in the 125-130 kcfs range to meet BPA's criteria for economic viability. In addition, CRITFC wants the power agency to begin aggressive energy conservation measures and a buyout of irrigators' power and water. It also recommends that available storage meets peaking hydrographs to help flush fish. They want juvenile salmon to stay in the river "to avoid high temperatures in screen and transportation systems" and want reservoirs to be left with some storage as a buffer for a potential El Nino water year in 2002. CRITFC also recommends that spring and summer spill be fully implemented in the Lower Columbia, with nighttime and summer spill for Snake projects.
The proposals will be taken up later this week at the March 1 IT meeting in Portland. Feds say that operational priorities and principles should be finalized by the following day. -B. R.
 SPRING HARVEST RATES GO UP TO NAB MORE CHINOOK
This year's monster prediction for spring chinook in the Columbia River, officially pegged at 365,000 by harvest managers (who have lowballed run sizes the past two years by 33 and 58 percent), has been excuse enough for state agencies and tribes, with a nod from NMFS, to boost harvest rates this year. Tribal fishers will be able to harvest 13 percent of the run, and non-Indians 2 percent. Last year, tribes got about 8.5 percent, and non-Indians .5 percent.
The boost seems to contradict the new BiOp which says "harvest constraints now in place must continue for some time so as not to thwart other recovery efforts." The BiOp also points out that the scientific assessments which informed the new BiOp assumed that "recently established harvest constraints and their associated survival benefits will be maintained." Last year, when runs doubled in size, NMFS allowed a harvest rate increase of just 2 percent for tribal fishers. Their 2000 harvest BiOp said "increases in harvest are inappropriate given the critically depressed status of the stocks."
But a press release from the agencies and tribes said their scientists concluded that the new abundance-based plan, with reduced impacts when wild runs are low, is "at least as conservative for fish recovery as the previous plan, yet provides more opportunity to harvest hatchery fish in years of major abundance."
The new way of figuring harvest is part of a five-year agreement just completed between states and tribes that has been applauded by all parties to it. Another part of the plan, though, still largely unresolved, deals with the use of surplus hatchery fish for outplanting in streams.
NMFS harvest biologists are calculating expected effects on ESA fish from the settlement; no one expects them to nix the new harvest rates. NMFS' Pete Dygert said the harvest BiOp should be completed by mid-March. He noted that his agency has been a party to the negotiations all along, and didn't think the analysis would jeopardize the agreement.
But the fact remains that in years of higher abundance, such as this, runs of listed fish will be harvested at a much higher rate, nearly four times the rate they would be caught when runs are less abundant. "You've got to remember how many more fish we're dealing with when runs are good," Dygert said.
Nearly 40,000 wild spring chinook are expected to head for the Snake this spring, up from about 12,400 in 2000 and 2,800 in 1999. Upper Columbia wild springers are estimated at a little over 6,000 fish, up from 4,300 last year and 500 in 1999.
Some regional biologists say the boost in harvest is misguided, because it lessens the chance to increase wild returns by much when ocean conditions have improved their rate of return four-fold from two years ago, and could lead to a much longer recovery effort.
With so few fish or none at all in some Idaho streams, every fish counts, they say, not only for broodstock, but also to increase nutrient levels from carcasses to make streams more productive for emerging fry.
But NMFS scientist Michelle McClure, who has calculated needed survival changes for listed stocks in Idaho, said an increase in harvest this year won't change the risk assessment in the current BiOp by much, since the analysis uses a five-year running average for population numbers.
However, the boost in Idaho wild fish numbers last year may be short-lived. The real world has thrown theoretical biologists another curve. The low snowpack this winter may have led to high fry and egg mortality in streams because of freezing temperatures that are normally buffered by insulating properties of snow.
Selective Fishery Methods Tested
In order to increase the harvest of hatchery chinook and still provide protection of ESA-listed chinook, the lower Columbia River fishery will test tangle nets and traps to see if wild fish that are caught can be released alive. The sport fishery will be managed to reduce catch of wild salmon.
One test of the tooth net in 10-minute drifts, showed that out of 25 fish caught, three died. "There may be a restriction on soak time and a requirement for frequent layouts," said ODFW harvest manager, Guy Norman, "This makes the fishery less effective." So far, tribal fishermen aren't interested, though about 30 percent of them used larger mesh nets last fall to reduce impacts on listed steelhead.
Eric Bloch, Oregon member of the Power Planning Council, said the new agreement will make the sport fishery selective this year, and the lower river commercial fishery selective in 2003, with agreements on hatchery production completed by 2003. The sliding scale for harvest will range from 4 percent when run sizes are low to 17 percent during large runs. The non-tribal fisheries will be held to a 2 percent harvest rate during highest run years with the tribes held to a 15 percent maximum harvest rate.
According to Bloch, the state, federal and tribal agencies will conduct a stock status survey in the agreement's third year to determine whether the stocks are increasing as a result of the harvest management agreement. -Bill Rudolph, Bill Bakke
 CATHOLIC BISHOPS RELEASE PASTORAL LETTER ON COLUMBIA RIVER
Twelve Catholic bishops from the Northwest, concerned over growing economic and social conflicts over water uses in the Columbia River Basin have released an 18-page letter that calls for all stakeholders to work together in a spirit of good will "to effect a spiritual, social and ecological transformation of the watershed." Pastoral letters are considered teaching documents by the bishops. Over the years, others have been issues on war and peace, the economy, and the environment.
Work began on the Columbia River letter in 1997, when a series of workshops and readings began to collect different viewpoints on the watershed. According to a press release, the bishops feel, "It is important for those with deeper concerns about the environment to recognize that farmers, ranchers and other landowners and workers are not their enemies. It is equally important that the latter groups seek to better understand environmental concerns. Protection of the land is a common cause promoted more effectively through active cooperation than through contentious wrangling."
The Archdiocese of Seattle has been in a bit of a wrangle itself, lately, on the west side of the mountains, protesting, along with other religious leaders, against a recent moratorium on rural church and school construction approved by the King County Council. The Council wants more study on long-term effects of these type of developments before a permanent policy is adopted. The County is afraid they create more traffic and development. But Archdiocese spokesman Bill Gallant told the Seattle Post-Intelligencer that the church doesn't build to encourage growth, but is just reflecting demand. -B. R.
 BPA TO USE F&W CONTINGENCY CREDITS TO PAY TREASURY
Oregon Gov. John Kitzhaber's request that the Bush administration authorize BPA to skip its $732 million Treasury payment for the first time since the 1970s has met with little support from Northwest policymakers and elected officials. While Kitzhaber suggested during a Feb. 7 speech that a deferment would alleviate some of BPA's power market-related financial stress, most seemed to believe that such a move would only turn up the political heat on the agency.
As if right on cue, Kitzhaber's proposal elicited a near-instantaneous reaction from perennial Preference foe the Northeast-Midwest Institute, which dashed off a statement the very next day characterizing it as an "attempt to further fleece the U.S. Treasury" and renewing its claims of BPA profiteering in California.
"It would be a big mistake right now to miss a payment and have Congress start wondering why," said Joe Sheffo, spokesman for Sen. Gordon Smith (R-OR). A similar sentiment was echoed by other members of the Northwest delegation, as well as Gov. Gary Locke (D-WA) in an address delivered to the Washington Rural Electric Co-op Association.
The notion of deferring the Treasury payment outright has gained little critical mass, and there are a number of other tools the agency has at its disposal to help meet its financial obligations, even with power prices in the stratosphere and a water year pegged as the fourth worst on record and still deteriorating. BPA Administrator Steve Wright outlined these measures for Northwest delegation members and met with Energy Secretary Abraham earlier this month. They were also the topic of a recent BPA presentation to the NW Power Planning Council.
The contingency plan for operation of the hydro system, as well as certain provisions of the new rate case, will help keep reserves healthy. But also grabbing headlines were BPA's 4(h)10(c) credits under the Northwest Power Act. Put into effect in 1995, the credits allow BPA to recover a portion of its fish and wildlife costs that are unrelated to power generation on the hydro system (ie. those associated with navigation, irrigation, flood control and recreation projects.) While BPA initially funds a share of all F&W projects at federal dams, ratepayers are only required to pay for those related to power. The agency is thus allowed to apply non-power project costs as credits toward its annual Treasury payment.
BPA's total 4(h)10(c) credits are equal to 27 percent each of its annual F&W expenses, capital expenditures and--most significantly this year--its power purchases attributable to forgone generation. Since they were established in 1995, BPA's 4(h)10(c) credits toward Treasury repayment have ranged from $14.3 million to $60 million. But with the spectacular rise in market prices, BPA has pegged this year's credit at about $458 million. The number could climb higher, since the estimate was based on what now appears to be a too-optimistic runoff forecast of 72 MAF.
Another factor offsetting this year's Treasury payment may be BPA access to something called the Fish Cost Contingency Fund. Memorialized in a 1995 letter between then-OMB director Dr. Alice Rivlin and former Sen. Mark Hatfield, the $325.2 million FCCF was set up in order to capture all of the costs BPA had paid for non-power-related F&W projects prior to that year, when the 4(h)10(c) credits were first put in place.
Under the terms of the Rivilin/Hatfield letter, BPA can access the FCCF in any of three circumstances: when court orders increase the agency's annual average F&W costs above $435 million; when adverse hydro conditions--falling in the range of the worst 15 years of the 50 years on record--reduce non-firm revenues and increase power purchases; and when the federal government declares a natural disaster or fish emergency. The amount of FCCF funds BPA can apply is determined via a calculation that compares 1996 rate case projections for non-firm power revenues and purchase costs with current-year projections using actual streamflow data.
Based on this formula, BPA estimates that in addition to this year's $458 million-plus in 4(h)10(c) credits, it should also be able to access $158 million in FCCF funds to apply to Treasury payment.
Still, at the end of the BPA presentation to the Power Council, some question remained as to whether the new Bush administration would recognize the FCCF terms laid out in the 1995 Hatfield/Rivlin letter, extend the 4(h)10(c) credits and allow the agency to apply them to its Treasury payment. The same question was on the minds of Northwest lawmakers after meetings with Wright.
One media outlet reported that BPA would first have to secure White House approval in order to access the FCCF credits. According to the agency's latest legal analysis, however, that is not actually the case--at least in strictly legal terms.
"The law does not say we have to have White House approval," said BPA attorney Philip Key. "Then again, if we didn't do this in coordination with the White House, it might not work real well. I can't and don't want to guess what the repercussions may be."
Still, BPA believes the change in administrations should not pose a problem. "The Rivlin agreement wasn't legally required for BPA to have both legal authority and obligation to be taking that credit," he explained. "But it was necessary for us to get Treasury and OMB to recognize it. The letter's just the policy side of implementing the legal mandate."
Key also said BPA has briefed Treasury on the fact that "this is shaping up to be one of the worst water years on record and we think we've triggered one of the contingencies that allows us to access the FCCF…. All indications are that it will be triggered and it could be much greater than we've sought to take before."
BPA Power Business Line VP Paul Norman further downplayed the agency's decision-making roll in tapping into the FCCF. "It's fairly mechanistic in terms of how it works," Norman said. "It's not particularly a policy decision for us to make because when there's extremely low water, it automatically triggers."
Still unclear was precisely how and if BPA's ability to apply these credits would, either directly or indirectly, affect rates. "It's not some new thing, or manna that fell on us from heaven," Norman said of the 4(h)10(c) and FCCF. "These things have already been factored into all the modeling of the Treasury payment" included in the new rate case, Norman said. "These credits are already on the books." -Angela Becker-Dippman
LINKS/DOCUMENTS FROM NW FISHLETTER 119:: Below are listed links and documents referred to in the text of NW Fishletter issue 119.
- TMT's Web site, Technical Management Team Home Page, North Pacific Division, US Army Corps of Engineers
- 18-page letter, Columbia River Pastoral Letter Project
THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.
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