BPA Allows Some Summer Spill After All
 BiOp Lawsuit Simmers On Low Heat As More Intervenors Added
 Feds Face New Lawsuit Over Water And ESA, Maybe More
 Fall Fishing Season In Columbia River Now Open
 WA Lawmaker Introduces Bill To Fund Dam Breaching Study
 States, Tribes Weigh In On Big BiOp Implementation
 BPA ALLOWS SOME SUMMER SPILL AFTER ALL
Just a few scant weeks after BPA acting administrator Steve Wright told the region's fish managers that he wouldn't OK any summer spill for fish, the agency turned on the spill spigot at two Columbia River dams.
Wright had cited the worsening water supply forecast for his June 29 decision to keep from spilling. Now it seems that cheap power and a slightly better reliability outlook have allowed Bonneville to go along with fish managers' requests--up to a point.
The managers wanted 600 MW-months' worth of spill at three dams, with BPA purchasing power to keep the effort reliability-neutral. After several intense meetings and conference calls, BPA finally OK'd day-to-day 24-hour spill at The Dalles (15 Kcfs minimum spill, up to 30 percent of the flow) and five hours of evening spill at Bonneville (45 Kcfs minimum) dams.
But only a day into the new program, hydro operators were prepared to cut back on the limited spill effort that began on July 24. The Columbia Generating Station was shutting down for about a week to fix a pump seal, and BPA was having a hard time finding enough spot power to fill the hole. Still, BPA Power Business Line VP Paul Norman said the spill operation would be maintained for the next two weeks. It was expected to cost about $5 million in power purchases to make up for the spill.
Fish managers, notably CRITFC's Bob Heinith and ODFW's Christine Mallette, had stumped hard for any spill at all being better than none, but lacked survival data to show that it would benefit fish in this extremely low flow year. Power operators and the Corps of Engineers questioned the models used to determine the value of the spill, citing the impact of adverse tailwater conditions from low flows being compounded by spilling water, making it extra hard for juvenile fish to leave the area below the dams, and hence suffer higher mortality from predators like the northern pikeminnow.
Corps biologist Rock Peters reported at the July 20 TMT meeting that with the low flow conditions and little water available for spill, survival would actually go down if a spill regime was instituted at John Day. There might be more benefit at The Dalles, however, because the project lacks a fish bypass system. Thirty percent spill could produce a 3 percent survival improvement, he said--up to 90 percent overall.
As for Bonneville Dam, Peters said spilling 50 Kcfs 24 hours a day would be a wash in terms of fish survival. Since only one or two turbines could operate if most of the flow went over the spillway, less flow through the basin would mean increased powerhouse mortality. Total survival was expected to be about 93 percent in either scenario.
With little information on how many fall chinook are in the river to benefit from the scaled-back operation, NMFS guessed that "several million" were still migrating at the present time. NMFS policymaker Jim Ruff told managers at a July 20 IT meeting that about 15 percent of the fall run would benefit from a 200 MW-month spill over the next two weeks--but that was based on an analysis that included spilling at John Day Dam. He said the NMFS model showed a 6 percent benefit at Bonneville Dam, 4 percent at The Dalles and 2 percent at John Day. BPA's Bill Maslen questioned the model results because they were based on normal flow conditions, not the current low flow situation throughout the system.
At that July 20 meeting, BPA's Therese Lamb raised her agency's concerns over regional reliability--and first mentioned that the nuke might soon be going down for repair, causing an 1100-MW shortfall for the system. BPA was already purchasing power to maintain project minimum discharges in order to store water to meet the goal of a 28,000 MW-month storage target by Oct. 1.
Policymakers decided to leave John Day out of the spill equation due to dubious survival benefits, and that seemed enough to get BPA to back off on the reliability issue.
Norman said taking John Day out of the spill scenario "made a huge difference."
At yet another IT meeting July 24, the current spill operation was OK'd at the two dams after fish managers met the previous day to craft the new proposal. Some parties--the tribes, Oregon, Idaho and Washington--supported a minimum spill level below 45 Kcfs at Bonneville Dam if total flows were below 84 Kcfs. The Corps of Engineers and NMFS felt that less spill could be detrimental to fish because flow patterns changed below the dam at the lower levels.
But with little discussion of biological benefits, some were clearly uncomfortable with the decision process. Montana Power Planning Council member Stan Grace said without more information on smolt survival "in numbers" and expected benefits in returning adults, "I really don't have any values to make a judgment on a policy call."
NMFS' Brian Brown said his agency had presented information that was the basis for NMFS continuing recommendation to spill.
"You put a lot of numbers out there that you could kind of take from it whatever you wished to take from it," Grace responded. "I would think you could be a little more specific on these issues." A disgruntled Grace later told NW Fishletter that his state would no longer participate in the TMT/IT forum this year unless agenda items included direct operations of Montana reservoirs.
Consultant Jim Litchfield, who also represented Montana, pointed out that NMFS on June 29 had presented survival estimates for a 200 MW-month spill program, but that wasn't anything like the operation now being considered. He called for an updated survival analysis.
Litchfield said the stocks that will benefit most from the spill are Hanford fall chinook, which are subject to "aggressive" harvest. "So the principal operation, in my mind, is to trade off system reliability versus increased harvest opportunity four years from now--and I don't know what that harvest opportunity is...when we're looking at a couple of hundred MW-months, the power costs could be $10 million or more. So if it's really a tradeoff between predicting fish for harvest and ten million dollars, we've got to make a helluva lot of fish to justify that kind of operation. It might be more effective to actually contribute those funds to the fishermen and reduce fishing pressure in the future with reduced mixed stock pressure on the listed stocks in the Snake," he said. -Bill Rudolph
 BIOP LAWSUIT SIMMERS ON LOW HEAT AS MORE INTERVENORS ADDED
The Oregon district court lawsuit filed in May by 16 environmental and fishing groups that challenges the new hydro BiOp has heated up lately as several parties filed for intervenor status. Both the Public Power Council and Northwest Irrigation Utilities were trying to get into the game. The court granted them intervenor status July 26.
NIU's executive director John Saven was blunt about the situation. "It's essentially a protective move," Saven said. If the judge eventually orders some type of mediation to settle the complaint, "we want to be at the table." So far, the Warm Springs and Umatilla Tribes have been granted amicus status on the plaintiffs' side.
Northwest states are still unsure whether they will join. "We're treating it as a very serious lawsuit," said Curt Smitch, natural resource advisor to WA Gov. Gary Locke. But he said that attorneys general from Idaho, Oregon and Washington will soon be meeting to discuss that very topic, to weigh options and decide whether to file for amicus or intervenor status. As for Montana, Smitch said he wasn't sure where the state stood on the issue.
"Montana's still weighing its options," said NWPPC member Stan Grace. "We should make a decision in the next week or so," he said. Grace acknowledged his lukewarm support for the BiOp "as is."
"Washington wants to see the BiOp move forward," Smitch said, but he expressed doubts that the current way to implement it will work, with so much emphasis on a coordinated effort between states and the NWPPC fish and wildlife program to spearhead the off-site mitigation efforts called for in the BiOp.
"Institutional inertia on the river is formidable," Smitch added, but said he was encouraged by the recent meeting with Bush Administration officials, who pledged to support the effort.
One of the main targets of the lawsuit is the new BiOp's call for offsite mitigation to improve listed fish stocks--an action that helped NMFS in reaching a "no jeopardy" decision for operation of the federal hydro system. The plaintiffs allege that NMFS has violated Section 7 of the ESA, in part because the NMFS assessment "relies extensively on speculative and voluntary actions by other federal agencies, as well as state and private entities, in areas unrelated to FCRPS operations and beyond the control or authority of the Action Agencies."
The BiOp contains a complicated analysis that estimates the needed improvement to each ESA stock from habitat improvement, in addition to what may be gained from improvements in dam passage. The results are leavened with uncertainties. The effects of interaction with hatchery fish on wild stocks' productivity is one of the biggies; another is the differential mortality between transported and inriver migrants.
That's why policymakers like Washington's Smitch are so concerned. He feels that the Power Planning Council's sub-basin planning process isn't responsive enough to satisfy the BiOp in time to recover the fish. That's why he thinks the document may be vulnerable in court.
Environmental groups, led by American Rivers, challenged the 1995 BiOp in federal court and ultimately lost, but the old BiOp was much more limited in scope. The state of Oregon intervened on behalf of environmentalists in that lawsuit. Montana joined NMFS as intervenor, and Idaho filed an amicus brief supporting NMFS. Washington and Alaska, along with the Yakama, Umatilla, Nez Perce, Warm Springs, Spokane and Colville tribes, also participated in that lawsuit as amica curia. -B. R.
 FEDS FACE NEW LAWSUIT OVER WATER AND ESA, MAYBE MORE
The water dispute in the Klamath Basin has drawn the nation's attention to the conflict involving farmers, ESA-listed fish and the federal government--but simmering debate over water and fish issues has already been going on for years north of the of the camera crews and suckerfish. One new lawsuit over ESA fish and water issues was filed in June by groups in northeast Washington--the latest chapter in the messy Methow Basin, once touted by policymakers as a model watershed process.
More litigation is on the horizon, including a potential blockbuster threatened by mainstem irrigators. They said they will go to court if the yet unappointed Northwest regional NMFS administrator of the National Marine Fisheries Service doesn't lead an effort to change the water policy in the new hydro BiOp.
But sources indicate that eastern Washington irrigators' top choice for the NMFS job, state senator Dan McDonald, will not likely get the job. Rather, it looks like the position will go to Bob Lohn, who heads the Power Planning Council's fish and wildlife staff. It was reported that the Administration may name NMFS' top DC position later this week, with the regional spots to be announced soon after.
Up in Washington's Methow Basin, where the wrangling over water for listed salmon and steelhead is in its third year, Okanogan County, a ditch company and several Methow landowners have joined together in a lawsuit against NMFS, the USFWS and the US Forest Service. Filed June 19 in eastern Washington District Court in Spokane, the suit alleges that draconian target flows developed for the region unfairly affect water users who rely on ditches that flow across federal property. It says the federal mandates impair senior water rights--"a violation of state and federal law and the United States Constitution."
Methow Valley resident Dick Ewing, who heads the volunteer watershed planning unit, told NW Fishletter that three irrigation ditches have been shut down since last month because river flows have reached levels that federal authorities say are critical for fish.
But those flow levels are a major subject of debate. Ewing and others say the feds aren't even sure how much water humans use in the basin. The state Department of Ecology counts the full 5,000 gallons an exempt well is granted for daily consumption regardless of how much is really used. But Ewing said it's more likely only about one-tenth of the water DOE is counting is actually being taken from private wells. And he says internal DOE files admit that the state's method of counting water use is not fair.
Despite the lawsuit, Ewing said planning efforts are still making progress, but it will take years before some results are evident. The Methow Basin's work plan calls for 10 years of monitoring flows to help sort out how much water people really do use--and how much the ditches actually recharge the local ground water and add to flows in local rivers. The state Department of Ecology has just given the planning unit and the county its last installment of $175,000 to fund the continuing effort.
Washington state policymakers don't support the lawsuit. As for the plaintiffs' contention that the federal flow targets are usurping state water rights, "the state doesn't agree with that," said Curt Smitch, Gov. Locke's salmon advisor.
Plaintiffs' attorney Galen Schuler said the state seems to "be keeping its head in the sand" on important water issues. He pointed to an ongoing Colorado lawsuit, Trout Unlimited v. USDA, that's being watched closely by many Western states. The conservation groups filed the action in an attempt to get the Forest Service to boost instream flows for fish. Schuler says it's similar to the situation on the Methow, where the Forest Service has regulated private ditches to satisfy NMFS biological opinions because parts of those ditches traverse Forest Service land.
The question of whether the USFS can pre-empt state water rights has caught the attention of six states, which have filed amicus briefs in the Colorado case. Arizona, Colorado, Alaska, Idaho, Nevada, New Mexico and Wyoming all believe that the feds have no authority to impose bypass flows on existing water users.
More Focus On Fish
Gov. Locke's water policy calls for a real focus on developing more flows for fish in the coming year--an issue that has been taken up by farmers, government and conservationists in the Ag-Fish-Water discussions led by consultant Jim Waldo.
But agriculturalist Mike Poulson of the Washington Agriculture Legal foundation said it's been a long haul to get this far. He said the parties involved have spent nearly an entire year dealing with issues like "tidal drainage ditch clearing"--important to the wet side's Skagit Valley, but of no value to east-of-the-Cascades farmers.
The slow progress has others frustrated. At the July 23 annual meeting of the Columbia-Snake Irrigators Association in Pasco, some regional players heard from the Ag sector and in turn promised that they will be heard. Power Planning Council chair Larry Cassidy told the group their recommendation to remodel the new BiOp's flow augmentation policy for the mainstem Columbia and Snake would get a scientific review by the Council's independent panel to see if it could become part of the NWPPC's new program. Later, he said other mainstem recommendations recently solicited by the Council, including tribal plans, should also get scientific scrutiny.
Consultant Darryll Olsen said the group has had a litigation strategy in place for a year. He said if the BiOp isn't soon re-opened to change the NMFS "no net loss" water policy for fish and change flow targets "dramatically," the irrigators will sue over the issue "if there's not a rapid change as a result of a change of administrators."
Olsen said a new regional NMFS director could lead that effort. But so far, the Bush Administration has not filled the position, though it's reported to be down to two candidates: Bob Lohn, who heads the NWPPC's fish and wildlife division, and Washington state senator Dan McDonald, who also spoke at the irrigators' meeting. McDonald, who is strongly supported by irrigators for the NMFS job, said recovery options should be reviewed to see which ones really work.
The Tri-City Herald characterized McDonald as the Administration's top choice, but other sources indicate that Lohn may be soon named to the spot. A backroom deal to split the job between both candidates seemed to fall apart over the weekend. Lohn has heavy support from Idaho and Oregon.
The irrigators also heard from University of Washington's Jim Anderson, who for years has consulted for BPA, the Corps of Engineers and irrigators on fish issues. Anderson said the newer fish survival data do not support the BiOp's flow strategy that counts on heavy flow augmentation and spring spill at dams to help fish pass through the hydro system. -B. R.
 FALL FISHING SEASON IN COLUMBIA RIVER NOW OPEN
Harvest managers are expecting a banner year for sports fishermen as more than one million coho salmon are expected to return to lower Columbia hatcheries this year. Fall chinook numbers look good as well, with better than 300,000 expected to enter the river.
"We're very pleased to see this large return to the Columbia," said WDFW director Jeff Koenings. "After a number of years of enduring incredibly harsh restrictions on fisheries, the high number of fish returning this year will provide plenty of opportunities for families to once again enjoy being on the water fishing."
The coho run is forecast to be the best return since 1986, reflecting much improved ocean conditions. The fall chinook run is only slightly better than last year's return. Bag limits are up to three salmon daily, only one of which may be a chinook. -B. R.
 WA LAWMAKER INTRODUCES BILL TO FUND DAM BREACHING STUDY
Congressman Jim McDermott (D-WA) recently announced he was introducing a bill that would pave the way for breaching the four lower Snake dams. It would also call for another study on the economic effects of breaching and authorize the Corps of Engineers to "partially remove" the dams if the Secretary of Commerce finds it necessary to satisfy ESA, Clean Water Act or tribal treaty obligations.
"The Bush Administration has so far failed to allocate funds to implement the 2000 Salmon Recovery Plan to avoid dam removal," McDermott said in a July 19 press release. "If this bill nudges them to take the plan seriously, and it is successful in preventing the breaching of the dams, then no one would be happier than I would," he said. "Now is the time to plan for all contingencies."
Co-sponsored by Tom Petri (R-WI) and 19 other representatives--but no others from the Northwest--the bill will face tough sledding to get out of committee, where opposition massed quickly, led by Butch Otter (R-ID) and Doc Hastings (R-WA). The two issued "Dear Colleague" letters asking fellow members not to support McDermott's bill.
Hastings pointed out that salmon runs this year have been the largest since 1938. He said, "It seems bizarre and unconscionable that anyone would be actively working to legislate the elimination of a clean energy source that provides power to Washington, Oregon, Idaho, Montana and energy-starved California."
Otter began his letter with the line, "Smells Fishy", and pointed out some of the major uncertainties in the salmon recovery analysis that must be resolved before any decision on the dams can be made.
McDermott's bill cites the PATH analysis by regional scientists as finding that breaching is the "surest" way to recover the Snake River stocks. NMFS began its own in-house analysis of the stocks after the PATH results were judged to be flawed by low estimates of juvenile survivals and delayed mortality of barged salmon.
The bill calls for peer review by the National Academy of Sciences, along with a GAO study on potential effects of removing the dams--including economic analyses. But it seems not to acknowledge the $25-million analysis the Corps of Engineers has already completed on the topic.
McDermott's bill was endorsed by many environmental groups, fishing groups, the Umatilla Tribe and Taxpayers for Common Sense.
American Rivers president Rebecca Wodder said McDermott and Petri were demonstrating essential leadership on the issue. "It's just common sense to have a 'Plan B' in case the current actions don't work," she said.
The federal plan includes a complicated timeline that already calls for dam breaching studies to commence in a few years if fish numbers don't improve. But that's too long for environmentalists like Wodders to wait. "The Salmon Planning Act will allow the federal government to begin planning to remove the lower Snake River dams," she said, "so that, if necessary, the dams can be removed in time to save the salmon. At the same time, the bill will let policy makers know what will be needed to protect local communities."
The bill took the region by surprise. Curt Smitch, salmon advisor to Washington Governor Gary Locke, said he had not heard a word about the bill before it was announced in the other Washington on July 19. -B. R.
 STATES, TRIBES WEIGH IN ON BIG BIOP IMPLEMENTATION
State and tribal representatives met with federal agencies Aug. 1 to discuss the draft plan for implementing the new hydro BiOp. Action Agencies [BPA, COE, BuRec] have been putting together its main elements since last winter when the BiOp was released in December. It was a tough day to communicate, much less coordinate with each other since the faulty phone hookup made it hard for those who didn't attend the Portland meeting in person to hear the proceedings.
Some state representatives expressed concern about the large "gray area" in the plan--where it's not clear just who or what agency is responsible for ESA-related salmon recovery activities that are expressly outside the hydro corridor. These actions play a large role in the new BiOp, because it relies on offsite mitigation for maintaining the "no jeopardy" decision for federal dam operations.
Washington's Curt Smitch was concerned that if recovery actions on non-federal lands don't work, then the hydro system is still on the hook for the ESA. "They are responsible if we fail…." He said the feds should use the infrastructure of his state agencies to implement "on the ground" recovery efforts.
A common theme was echoed by many speakers throughout the morning--both states and tribes want a solid working relationship with federal agencies instead of simply responding with comments to the draft plan released July 31.
"We feel we have been pushed aside," said Smitch, who used the meeting to stump for his agenda--direct cash payments from BPA to fund recovery efforts in his state, circumventing the NWPPC process which he considers too unwieldy. He said Idaho feels the same way.
But Power Planning Council chair Larry Cassidy said that doesn't mean his state doesn't support the Council's subbasin planning process that NMFS and Action Agencies want to use to develop offsite mitigation efforts called for in the BiOp. "State agencies have to play a role," he told NW Fishletter. He said NMFS should be developing a "crediting process" to satisfy the Action Agencies' ESA offsite obligations, but so far, it isn't.
Oregon Council member Eric Bloch also stressed that the region needs to work together, using the principles outlined by the four Northwest Governors for salmon recovery.
However, some tribal representatives weren't happy with the idea of direct cash payments to the states and called for more participation in the management process. Yakama tribal representative Randy Settler said the state agencies created the "political nightmare" in the first place. State priorities didn't necessarily mesh with tribal ones, he said, especially when it came to water usage.
But Smitch said if the plan remains a federally driven process, "…you will not change the climate by further defining the federal hammer."
Questions were raised over whether the direct program now funded by BPA would be off limits for BiOp spending, with more money be coming from the federal government and ratepayers to cover the added costs.
The draft plan calls for halting declining population trends within 5 to 10 years and increasing trends "within a timeframe determined through recovery planning."
Montana representative Stan Grace said more discussion is needed about such goals. He didn't think the region could tell whether fish improvements could be gauged in only five or six years.
Other goals include conserving critical habitat, enhancing other high quality habitat and attaining water quality standards in critical areas in the Columbia and Snake basins, along with ensuring tribal fishing rights and making sure the effort is integrated with the NWPPC's fish and wildlife program and "… ensure that salmon, steelhead, sturgeon, and bull trout conservation measures are balanced with human needs, including FCRPS project purposes." -B. R.
LINKS/DOCUMENTS FROM NW FISHLETTER 128:: Below are listed links and documents referred to in the text of NW Fishletter issue 128.
- Okanogan County Water Rights Complaint
- Draft Endangered Species Act Implementation Plan, July 31,2001
THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.
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