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NWF.135/Dec.20.2001
[1] Ninth Circuit Stays Hogan Ruling
[2] Fish Runs Are Over; Big Run On The Courts Begins
[3] Power Council Cranks Up Sub-Basin Planning Effort; Scientists Skeptical
[4] Arrowleaf Proposal Bounces Back To Science Panel For Another Look
[5] Two Years Late, Corps Announces Its "99 Decision," Says Dams Will Stay
[6] Enviros Say BPA Could Have Spilled More For Fish; Agency Disagrees
[7] BPA Ends Fiscal Year In Red; Slight Loss Projected Next Year
[8] So Many Culverts, So Little Money, Says GAO Report
[9] Another Big Run Forecast For Columbia River
[10] Chum Salmon Spawning Successfully In Lower Columbia
[11] BPA Releases Draft Study of Juvenile Spring Migrants

Correction: In Fishletter 134, the first posted version of a story about a Mid-Columbia fish survival study mistakenly reported that chinook survival this year at Rocky Reach Dam was 96.2 percent. No survival study was conducted at Rocky Reach this year. The 96.2 percent survival estimate for was the weighted average of 1998-2000 studies using both PIT-tagged and radio tagged fish.


[1] NINTH CIRCUIT STAYS HOGAN RULING

NMFS may be facing lawsuits from all points in the salmon spectrum, but one case the agency has opted to stay out of made waves last Friday, when the Ninth Circuit Court stayed the Oregon district court decision that threw out the agency's ESA listing for coastal coho.

A two-judge panel of the Ninth stayed the Oregon decision--on appeal by Earthjustice attorneys--in a two-sentence ruling that offered no explanation for the action. Hogan's September ruling tossed out the ESA listing for Oregon coastal coho because NMFS failed to offer protection to the hatchery stocks that made up part of the coastal coho ESU. Hogan had earlier granted intervenor status to environmental groups after NMFS itself decided not to appeal.

The latest ruling will halt some timber sales in Oregon by re-instating federal ESA protection for the coastal coho.

"The Ninth Circuit Court prevented the sacrifice of wild Oregon coast coho by the Bush Administration and the National Marine Fisheries Service," said Earthjustice attorney Patti Goldman. "All wild, imperiled salmon, including Oregon coho, now remain protected."

Another Earthjustice lawyer, Kristen Boyles, said the court threw cold water on the "opportunists seeking to de-list wild salmon up and down the coast. It's time for them to stop posturing and join with the majority of Northwesterners who want our fish protected."

But Olympia attorney Jim Johnson, who represents Common Sense Salmon Recovery in litigation against NMFS over ESA and harvest issues, said he was "still marching" after a Dec. 13 meeting with NMFS officials. At that session, discussions centered on settling his clients' lawsuit by de-listing the fish based on the Oregon ruling. (Common Sense Salmon Recovery v. NMFS).

"The cleanest remedy was suggested by NMFS in our last meeting," Johnson said in a Dec. 6 letter to federal attorneys, "--immediately withdrawing each of the listings in our case which were clearly unlawful based upon application of the Alsea ruling. The Administrative Record already filed with our Court dictates the withdrawing of the Lower Columbia, Upper Columbia Spring, Willamette and Puget Sound Chinook, all of which were directly challenged in our litigation (Causes of Action 2-4). The inclusion of hatchery fish, if considered on this Administrative Record (as of the listing date) requires withdrawal. This year's salmon returns--some of the largest ever recorded--make these listings absurd (and mean there is no harm to the runs by removing ESA protection). "

Johnson was pleased that the Department of Justice will soon have a new face to lead the federal response, Wyoming attorney Tom Sansonetti, who served as solicitor for the Interior Department during the reign of Bush senior. President George W. Bush nominated Sansonetti for the post of Assistant Attorney General for Environment and Natural Resources in April; he was confirmed by the Senate Nov. 30.

NMFS is still planning on reviewing stock status for listed ESUs, agency official Donna Darm said at a Dec. 18 seminar in Seattle. "There's lot of confusing language in the Hogan decision," Darm said. "People think we have to take into account hatchery populations to determine viability [of listed ESUs]." But the judge didn't say that, according to Darm, who told an audience of mainly NMFS personnel that government attorneys said there was some logic to Hogan, but an appeal could take two years. In the end, the agency decided it would be more productive to take a fresh look at the de-listing policy.

She said the agency is also developing a new hatchery policy in response to the Hogan ruling. "How you use hatchery fish is still the subject of debate," she said, and promised lively public discussion over the issue this year as the agency goes through the rulemaking process to finalize its new policy, promised by the end of next summer.

"The agency has also said it wants all populations consistent with the Hogan decision," Darm added, to determine if each listing is still appropriate. That process is already under way, she said, although the environmentalists' Ninth Circuit appeal could take longer than the NMFS effort.

NMFS geneticist Robin Waples said there was no chance "not to continue" the status updates, pointing out that the ESA calls for reviews every five years. "Some are older than that already," he said. He also told the group that simple increases in fish numbers will not lead to de-listings, and fish won't be officially de-listed until underlying problems that led to population declines are addressed. He said issues of juvenile freshwater productivity must be addressed as well, to help stocks become healthy enough to weather the next climate regime shift in 20 or 30 years, when conditions are expected to be less favorable to West Coast stocks. "They need to get through the next downturn." -Bill Rudolph


[2] FISH RUNS ARE OVER; BIG RUN ON THE COURTS BEGINS

Now that the huge salmon runs are over for the year, the focus on fish has shifted from the beaches to the bench, where NMFS faces a flurry of lawsuits over different aspects of its salmon recovery effort. Environmental lawyers from Earthjustice scored what they called a "half-win" recently, while irrigators and land owners fumed over comments by NMFS officials unearthed in other litigation with the federal fish folks.
Critical habitat along the Snohomish River in Everett.

Earthjustice attorney Kristen Boyles, representing the Pilchuck Audubon Society and the Public Employees for Environmental Responsibility, said their half-win came when the Federal Highway Administration announced that it wouldn't release funds to help pay for a new street overpass in the city of Everett until NMFS writes a new biological opinion on the potential effects of the overpass and the resulting development the improved access would provide. The city has long planned to develop the property along the Snohomish River, once home to a sawmill and landfill.

In July, after NMFS OK'd the overpass in a biological opinion, plaintiffs filed suit in Western Washington District Court, saying the scope of the BiOp was too narrow, missed key impacts on threatened Puget Sound salmon and ran counter to prior agency determinations. They said it also failed to "independently assess the project's impact on designated critical habitat, and authorized state and federal transportation officials and the city to proceed with actions likely to jeopardize the chinook and have adverse effects on the listed fish habitat.

But federal highway officials announced their decision Nov. 15, before any ruling was made in court, asking that NMFS re-initiate consultation over the BiOp. NMFS has asked the court for a dismissal or a stay while it goes through the process again, citing "new information"--a revised traffic study not previously considered in its earlier analysis.

"The City of Everett wants to stay our litigation until the new BiOp is produced," Boyles told NW Fishletter. But she said the plaintiffs don't think it's right to keep the old BiOp in place while the new one is coming, and they will go back to court to see if their view will prevail.

It's been something of a sleeper, but attorneys familiar with Northwest fish litigation have been paying attention to the case. If a judge rules in favor of the plaintiffs, the decision could create a huge workload for NMFS staff if they must include potential effects of future activities in their analyses of very specific actions in urban areas. One attorney familiar with the case said a ruling against NMFS had the potential of tying up most highway construction throughout the Northwest. But Boyles said the case is focused on a very specific situation and is not intended as more than that.

The City of Everett has already spent $10 million over the last 10 years to clean up the landfill site, while the road changes would cost another $16 million, with some federal money involved. Future action would include relocating railroad tracks before the sites are developed for mixed use, including athletic fields.

The plaintiffs have charged that the Snohomish floodplain's rearing capacity has been reduced by 96 percent, and that NMFS itself says restoration efforts in the area had the potential of increasing wild chinook survival by 5,000 smolts annually. They say there are 70 wetlands on the mill site's 140 acres and Bigelow Creek--all critical habitat for salmon because NMFS designated it as such in the Federal Register in February 2000--"all marine, estuarine and river reaches accessible to listed chinook salmon in Puget Sound."

Another Critical Issue

The critical habitat issue is at the center of another lawsuit against the federal fish agency. Filed in district Court in Washington DC a year ago, plaintiffs include the National Association of Home Builders and several counties in Washington (including Okanogan and Grant), Oregon and California, who argue that critical habitat designations for 19 fish ESUs listed in 1999 violated terms of the ESA because they include every bit of the listed fishes' habitat in 150 basins throughout the West Coast--including areas near ocean migratory ranges. They also faulted NMFS for not including analyses of the designations' economic impacts.

In a Nov. 18 press release, the builders uncorked a 1998 NMFS inter-agency memo in which NMFS official Donna Darm, head of the regional office of protected resources, admitted that critical habitat designations lacked a scientific foundation. "When we make critical habitat designations," Darm wrote in comments on a draft NMFS document on habitat analysis, "we just designate everything as critical, without an analysis of how much habitat an ESU needs, what areas might be key, etc.

"Mostly we don't do this because we lack information," Darm said in the same memo (but not included in the press release). "What we really do is the same thing we do for Section 7 consultations. We just say we need it all. It might be good to be explicit about this as well, since this designation is related to habitat analysis."

NMFS spokesman Brian Gorman told the Tri-City Herald that Darm's comments were based on the premise that the most conservative thing to do for endangered salmon is to protect as much habitat as possible.

Perkins-Coie attorney Galen Schuler, whose firm represents plaintiffs in this case filed for summary judgment Dec. 3. He said the government filed a motion Nov. 19 for voluntary remand of the case while the agency comes up with a new analysis for critical habitat designations. "They're saying, 'we want to fix it, but we want to keep it in place while we do,'" Schuler told NW Fishletter.

Schuler said there are several precedents involved in the case as well, including a September decision where a federal judge in Arizona ruled that the USFWS's critical habitat designation for the cactus ferruginous pygmy-owl was unlawful because the agency failed to fully evaluate economic and other impacts. Judge Susan Bolton told the agency to come up with a new designation that satisfied the court's concerns that the original designation was too broad and unscientific. In the meantime, restrictions on development related to the owl on 730,000 acres of its habitat were temporarily removed. Plaintiffs included the same National Builders Association that sued NMFS over its salmon habitat designations.

The habitat issue was brought to light in another salmon suit last month, Okanogan County et al v. NMFS et al, in a brief filed by plaintiffs in federal district court in Spokane. Though the main focus of the memorandum in support of summary judgment was the Forest Service's alleged illegal action to regulate state water rights and instream flows (required by the NMFS BiOp) over irrigators in the Methow Valley, the memo also brought up the NMFS "Habitat Approach," which plaintiffs' attorneys Schuler and James Johnston said directly conflicted with earlier NMFS interpretations of ESA consultations adopted in 1986.

The agency's new approach uses a test called PFC, or "properly functioning conditions," a matrix of 18 numeric and qualitative measures for assessing habitat that were developed for the Northwest Forest Plan. They quoted NMFS policymaker Darm from the same memo cited above. "Non-PFC = Jeopardy. This paper says...that if you aren't staying in PFC, or if you are getting further from PFC, or if you are impeding progress toward PFC, you are jeopardizing. This is a strong statement to make without any factual analysis, and this is what was bothering FWS..."

The plaintiffs say the PFC approach violates the Administrative Procedures Act because the new interpretation never went through notice and comment rulemaking. "If an agency adopts a substantive or legislative rule without satisfying APA requirements, the rule is invalid."

They said the new policy has led to "absurd" results in the Methow Valley because "NMFS has imposed instream flow conditions based on a 'recovery' standard rather than the jeopardy and critical habitat standards provided for in the ESA and its implementing regulations."

The memo quotes from the administrative record, a 1999 e-mail from one NMFS official who, the memo says, acknowledged the new habitat approach was a significant departure from ESA regulations. "This is my favorite part! We actually say something beyond what anybody could have gotten themselves from the regs." The feds responded to the motion Dec. 7 with oral arguments scheduled later this winter.

Washington Trout Goes After Salmon Harvest

The feds took a new hit Nov. 20 when the conservation group Washington Trout filed a lawsuit against NMFS that targets the agency's harvest plan for Puget Sound, where chinook are listed under the ESA. The group claims that NMFS violated the ESA by not conducting a Section 7 consultation before it made the determination that the harvest plan satisfied requirements of the Tribal 4(d) rule. It also said NMFS violated both the Administrative Procedures Act and the National Environmental Policy Act by not preparing an EIS or environmental assessment of the harvest plan.

"We are not challenging the Northwest Tribes' treaty-right to half of any harvestable surplus of salmon or steelhead," said Kurt Beardslee, Washington Trout executive director. "When the scientific evidence is clear that a surplus can be harvested without harming threatened stocks, we strongly support the Tribes' priority right to prosecute those fisheries. The question is how you identify a surplus and how you manage risks to stocks that have no surplus."

The group said while the plan "purports to cut harvest rates on some stocks, it will actually reduce the more important spawning targets on many runs, some by as much as half...NMFS claims the current state of the habitat won't produce more fish even if harvest is reduced, but it offers no data to support this counterintuitive assumption. To accommodate various stakeholders, the agency uncritically accepted the assertions of the entities it is supposed to regulate."

Meanwhile, the lawsuit filed in May by environmental and fishing groups against NMFS over the new hydro BiOp was percolating out of public view while an environmental facilitation group completed its report to the federal judge to assess the potential for mediation in the case. A confidential draft assessment was being circulated by the group, but parties wouldn't comment on particulars during the final comment and feedback period. The final assessment was scheduled to be completed by Dec. 7. Nothing has been officially announced, but it was been reported that the group did not find fertile ground for mediating the lawsuit and was going to recommend that it not be used as a way to settle the complaint.

One of the main targets of the lawsuit is the new BiOp's call for off-site 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." -B. R.


[3] POWER COUNCIL CRANKS UP SUB-BASIN PLANNING EFFORT; SCIENTISTS SKEPTICAL

Power Planning Council members were somewhat cranky at last week's meeting in Portland, now that work has begun to mesh the Council's fish and wildlife program with measures recommended in the NMFS hydro BiOp to satisfy ESA requirements for listed Columbia Basin fish. It probably didn't help to have a member of the Council's independent science panel tell them the group doesn't think any of the region's salmon recovery plans have a good chance of success, though they acknowledged the Council's program was a work in progress (Their report is located on the NWPPC's website).

BPA officials were on hand to re-emphasize their commitment to funding and listen to what the rest of the region wanted for Christmas. During a Dec. 11 roundtable discussion, utility interests brought their own wish list to the Council and said BPA should draw the line on costs, while tribal groups complained that more funding than ever is needed, and that means federal taxpayer money, not just the dollars generated by Northwest ratepayers.

Irrigators were there to push their own agenda--to drop the spring flow augmentation strategy and use the money generated by extra power production to fund water projects in partnership with Basin tribal interests.

The huge effort to organize the Council's program at the sub-basin level is now picking up steam, but to some members, it seemed like extra processes being heaped upon the ones already in place. "We don't need the Power Council stepping into Washington state and telling them, 'we're here.' It's too much like the feds," said chair Larry Cassidy. His remarks came after staff attorney John Ogan briefed the council on strategies that might get the sub-basin amendment process rolling, including the possibility of holding public workshops throughout the region.

Cassidy was concerned about "duplicative processes," since a sub-basin summary exercise has already been completed. But Council staffer Lynn Palensky noted that northeast Washington residents have already requested a workshop to learn how to make recommendations for the sub-basin process. Cassidy said there is a 'sense of urgency' about getting the sub-basin program in place.

According to a draft Council document, NMFS has agreed to use the sub-basin plans "as the foundation for its recovery planning tasks" and will provide interim targets for ESA-listed salmon populations. "The Council believes that sub-basin plans that follow the Technical Guidelines and Overview that it has adopted are likely to have the scientific support and comprehensiveness that it will require for NMFS to find them adequate for near-term ESA regulatory purposes," the document reads.

"That is a key issue," said acting NWPPC F&W head Doug Marker, who added that NMFS' stand needs to be clarified.

BPA F&W head Sarah McNary suggested a year-long "test" of the sub-basin process, but the idea was not well received by Cassidy, who wants to get the process under way now. McNary said BPA was relatively comfortable with a phased approach, one that would allow contracting matters to get worked out on a small scale.

Cassidy said there is a "sense of urgency" about getting the program in place. The Council has already spent a year talking to state, tribal and federal entities about coordinating the planning effort.

With 62 sub-basins to contend with, the tentative schedule calls for submitting recommendations for the first three provinces (Gorge, Inter-Mountain, Mountain Columbia) by Nov. 1, 2002. The deadline for the second four (Plateau, Mountain Snake, Blue Mountain, Middle Snake) is Nov. 1, 2003, while submissions for the last four (Columbia Cascade, Upper Snake, Lower Columbia, Estuary) should be completed by Nov. 1, 2004.

Each state, along with pertinent tribes, is expected to determine the best approach for developing the Council's sub-basin plans.

The Council has established a preliminary budget of $15.2 million for the sub-basin planning effort for the next two years, with half expected to come from Bonneville. But BPA may be on the hook for more, since neither the Bureau of Reclamation nor the Corps of Engineers has any money budgeted for the process. The power agency is concerned that it won't receive proper BiOp "credit" for the off-site mitigation it will be funding, since NMFS has said it will be three to seven years before it can determine potential benefits of these restoration efforts.

The ISAB had an even more pessimistic view. Scientist Pete Bisson told the Council it was "unrealistic" to assume that monitoring strategies can be put in place to measure real changes in fish runs in the five- to eight-year time frame proposed in the hydro BiOp.

With the BPA commitment to spend $186 million next year on F&W programs (including capital costs) as a background for discussion, a roundtable of power industry types made it clear that they did not want the agency to significantly increase fish and wildlife spending. PNUCC chair Gerald Miller said the agency "should recognize the critical state of the Northwest economy," sentiments echoed by PGE's Pamela Lesh.

Umatilla Electric Co-op's Steve Eldridge said irrigators in his region are faced with 70 percent increases in their electric bills. He suggested a reduced emphasis on reservoir drawdowns and more effort to improve conditions in Basin tributaries. Without a unified funding plan, he said BPA should cut fish and wildlife budgets.

Others, including PPC's Rob Walton and NWIU's John Saven, called for reducing spring flow augmentation because it has little proven biological value to migrating fish compared to the cost in foregone power.

On the other side of the roundtable, Idaho Fish and Game Department head Rod Sando said because of the rigid nature of the ESA, nothing was tougher than managing endangered species. But he warned that talk of a budget cap for F&W spending was "premature" and more flexible options should be explored.

CRITFC director Don Sampson said federal taxpayers should be contributing to the program and pressure kept on the Administration to that end. He also thought BPA could spend more.

"We want to ask BPA how they explain costs," Sampson said, adding that he didn't accept the agency's most recent explanation of its fish and wildlife spending. In a Dec. 3 letter to Council chair Larry Cassidy, BPA said it was increasing spending by 50 percent over the 1996-2001 Budget MOA, a figure higher than the average of 13 alternatives modeled in the rate case.

The group told the Council that members should ask BPA to explain the costs. Otherwise, the tribes were prepared to go back to Washington, DC and ask those questions. "What happened this year didn't really have to happen," said Umatilla tribal spokesperson Kathryn Brigham.

The following day, irrigators once more explained their "New Water Management Alternative," this time packaged as a recommendation to the Council's mainstem amendment program. Consultant Darryll Olsen said the alternative's focus is on water volumes, not flow targets as in the BiOp. He said the spring flow program should be eliminated and the summer flow regime modified. "It's no different than how the Council managed water in its early years," Olsen said, and cited NMFS' own survival studies in his report.

Restructuring the flow program would leave more water for winter power generation and add another $70 million to $100 million in revenues, which could be used for direct funding of water projects. Olsen said tribes could be equity partners in these projects.

Such a regime would reduce Montana's and Idaho's annual water contributions, which would help his state, said Norm Semanko of the Idaho Water Users Association. He said a huge conflict was brewing in Idaho over surface water and ground water issues. "Junior water rights need mitigation," he said, which could come from reservoirs if they weren't drawn down for augmenting spring flows in the Snake.

In other Council business, members voted 7-1 (Oregon's Bloch voting no) for a major overhaul of the Fish Passage Center's oversight board. The FPC has been criticized for not sharing data and for its strident advocacy of flow and spill operations.

The motion calls for three possible options to be worked out between the Council and the Columbia Basin Fish and Wildlife Authority. All would reduce current representation of fish and wildlife managers and add a Council presence, along with an independent scientist, a NMFS staffer, upriver and downriver tribal representatives and a member of the public.

The debate over the biological value of a large land parcel in the upper Methow Valley was also discussed after BPA balked at paying its $2.5 million share for conservation easements on the property, in a $17 million deal coordinated by the Trust For Public Land. The agency said new information indicated that the river de-watered more often than the proposal indicated, and the Council voted to send the proposal back to the science panel for another look.

"I can't make judgments from the media," said Council chair Cassidy. Staffers said a recent story in NW Fishletter had focused more scrutiny on the proposal.

"Those issues [de-watering] were there initially," said Montana council member Leo Giacometto. "When there's no water in the stream, I can make a judgment call." -B. R.


[4] ARROWLEAF PROPOSAL BOUNCES BACK TO SCIENCE PANEL FOR ANOTHER LOOK

The Power Planning Council voted last week to let its science panel take another look at a controversial proposal that would purchase conservation easements on property in Washington state's upper Methow Valley. The proposal originally came up last spring as part of a group of "high priority" projects that BPA would fund to provide immediate benefits to listed fish. ESA spring chinook, steelhead and bull trout all inhabit parts of the Methow River.

At that time, Washington state and NMFS supported the proposal and the Council's independent science panel originally OK'd it. But last October, when some panel members toured the area, they found the Methow dry as a bone where it flowed by the 1,020-acre property. BPA balked at the proposal in early December after panel members became concerned.

Council staffer Doug Marker told members last week that the river de-waters more frequently than originally understood. "The question asked by Bonneville," Marker wrote in a memo to members, "is whether the absence of flows occurs so frequently that the dewatering limits the benefits the Council anticipated from the project." The memo recommended sending the proposal back to the ISRP [Independent Scientific Review Panel] and NMFS for another review before the Council decides to stay with its original recommendation to fund the project.

The Trust for Public Land had purchased the acreage and was coordinating a combination of public and private funding, including selling some of it, to create large conservation easements on the land. BPA was going to pony up $2.5 million towards the $17 million proposal, to help protect land that was originally slated for a massive development that foundered when it came to securing enough water for the real estate project and golf course.

Both the state of Washington and Trust for Public Land were on hand to press their case before the Council's F&W committee. WDFW's Bill Tweit told the committee that "this is the best part of the Methow and the Methow is the best part of the Columbia...," where 20 percent to 30 percent of the river's spring chinook spawn.

"It's a project locals themselves have pushed," Tweit added. He said habitat preservation in the upper Methow is a big priority among Methow residents. Though several valley conservation groups did support the proposal, Vaughn Jolley, Methow resident and head of the local irrigation district, told NW Fishletter that "he got a good laugh" out of Tweit's remarks because there is no consensus among valley residents for TPL's proposal. He said many locals don't think the fish habitat there is very important compared to lower reaches in the Methow.

TPL's Craig Lee said his group is relying on the BPA funding to complete the deal by Jan. 10. If the proposal goes back for scientific review, he suggested that it be done "in expeditious fashion." He pointed out that the "fish experts' liked it, and preferred that it not go back to the ISRP at all. Lee also told the committee that he had spoken to ISRP chair Rick Williams, who told him that he felt it would still qualify.

Marker was unhappy that Lee had contacted Williams about the proposal. "We strongly discourage sponsors from contacting the ISRP," he said.

"This is a hot potato from a political standpoint," said Idaho Council member Judi Danielson.

Committee chair John Brogoitti from Oregon was blunt. "This has been a source of real irritation to me," he explained. "Either we send it back to the ISRP or simply de-fund. Lots of political moves have been made that I don't think are appropriate."

WDFW head Jeff Koenings had weighed in at the end of November, with a letter to the Council that said his agency still considers the Arrowleaf property acquisition a high priority for his agency. Koenings said the area dewaters in many years, and most chinook spawn above or below the dewatered section, so the property still offers important "refugia" through disconnected pools "that persist in all but the driest of years." He said potential development of the property could adversely affect fish passage into Early Winters Creek and "reduce or eliminate habitat for fish spawning there.

"The fact that the upper Methow River is a losing reach that dewaters only makes those refugia habitats contained on Arrowleaf more important, not less," he said. Koenings' letter didn't quantify the frequency of the dewatering phenomenon. But local resident Dick Ewing, who heads the local watershed planning unit, said that stretch of the river goes dry in most years. Ewing sent his own letter to the Council that took issue with Koenings' characterization of the level of development in the area.

Ewing pointed out that zoning laws and the Shoreline Management Act keeps the flood plain from being developed or changed, "nor does he [Koenings] give credit to the fact that there is a concerted effort to consolidate many of the smaller properties in order to reduce population densities in the Lost River area across from the Arrowleaf property. Instead, he gives you the impression that development is rapidly spinning out of control."

Since prospective owners of building sites on the Arrowleaf property "are agreeing to preserve the natural ecosystem characteristics of the area," Ewing said "transferring ownership to the state of Washington or your direct purchase will not preserve anything that is not already preserved." His said the land's purchase by the public/private partnership would keep prices attractive for potential buyers, but if several more lots were added, that would keep the same environmental objectives "without resorting to public monies."

He called the potential BPA buyout "at best a subsidy. If a realtor or developer were involved in this, environmentalists would be calling this a real estate scam, " Ewing said.

Arrowleaf has been divided into four parcels, with 600 acres for sale and 400 of the "most ecologically critical" acres designated under public ownership. One 232-acre parcel for sale on the river (3-acre building site included) is commanding a $2.8-million asking price, while another 193 acres has a $2.5 million price tag (See arrowleaf.org for particulars).

Earlier federal support for the proposal came from Washington area director Bob Turner, who called the Arrowleaf property a key component in the upper Methow subbasin, which "contains highly productive habitat that could be degraded if developed under existing land use regulations." -B. R.


[5] TWO YEARS LATE, CORPS ANNOUNCES ITS "99 DECISION," SAYS DAMS WILL STAY

The Corps of Engineers has finally announced its preferred alternative for future operation of the lower Snake dams, marking the conclusion of a process that began in the 1995 BiOp that outlined a course designed to culminate in "the 1999 decision" on drawdown to help ESA-listed fish.

Six years and over $20 million later, the Corps--to no one's surprise--has announced that it prefers to make major system improvements at the four dams, rather than tear them out. The drastic breaching alternative came to light after an interim review found that partial-year drawdowns of reservoirs behind the dams would cost more and probably help fish less than simply breaching them and paying the economic price.

By 1999, the Corps had narrowed the range of alternatives to three others besides breaching: existing condition, maximum fish transport, and the major system improvements. Last year, 8,700 people attended meeting throughout the Northwest to discuss the options. The Corps collected 230,000 written comments before it was all over.

By then, NMFS had weighed in with its biological analysis that took issue with the earlier PATH recommendations that picked breaching over other options. But NMFS, using the most recent PIT-tag data, found that fish survival through the hydro system was higher than PATH scientists had estimated. However, critical uncertainties, like the question of comparative survivals of barged fish versus inriver migrants, kept the agency from making a direct recommendation one way or the other.

The latest NMFS hydro BiOp called for resolution of these questions and for dam breaching studies to begin if listed fish runs don't improve. But it also concluded that even if survival through the current hydro system were 100 percent, return rates would be too low to maintain the runs, so the BiOp recommended extensive offsite mitigation efforts to help fish--especially in the first year of their life. Since then, return rates have vastly improved for the time being, largely due to improvements in ocean conditions.

Though NMFS said it was unlikely that fish survival through the hydro system could improve by much, the Corps says it will improve the coordination and implementation of spill, flow augmentation and juvenile fish transportation, along with both near- and long-term structural improvements like better turbines, removable spillway weirs and surface bypass and collection structures. -B. R.


[6] ENVIROS SAY BPA COULD HAVE SPILLED MORE FOR FISH; AGENCY DISAGREES

A coalition of environmental groups has released a report that says BPA could easily have bought more power last summer in order to spill more water over dams to help juvenile fish migrate to sea. But the federal power agency disagrees. It says the report is seriously flawed and such a strategy would have been irresponsible.

"If BPA had given salmon only half the spill this summer that the new federal plan requires, it would have cost an average Seattle home 19 cents a month for a year, or $2.38 total for the year," said Nicole Cordan of the Save Our Wild Salmon coalition. "That spill would have helped migrating fish that really needed help in a terrible drought year," she added, "and we could have afforded it, yet BPA said no."

Facing the second-worst water year on record, BPA declared a power emergency last spring, trimmed load by paying the aluminum industry to shut down, and spilled only about 10 percent of the normal amount of water for fish. More fish were barged out on the Snake and Mid-Columbia to compensate for expected reductions in survival of fish that migrated through the slow-moving system.

The Dec. 3 report claims BPA used daily non-firm power prices to calculate the cost to BPA if it had spilled water last spring and summer. However, Robyn MacKay of the agency's power scheduling office said the world doesn't work that way. "The costs of spill would have bankrupted us, plus we'd have no water in the system for this winter," MacKay told NW Fishletter.

She noted that the agency would never have waited until June to buy power to make up for spill, but would have contracted for the juice months earlier if it had been in a position to do so. She said spot prices were prohibitive. In January, for instance, MacKay said BPA spent $50 million for power in a single week. "And typically, when we need power, the price goes up," she added.

The salmon coalition's report included a spreadsheet that tallied up potential BPA costs for the spill program from April through August--a figure that added up to over $534 million, according to the analysis by the Northwest Energy Coalition that was included. But the report focused on potential spill costs for only June through August, which added up to $112 million, noting that power prices declined significantly after last May, when California price caps went into effect. But the June spill would have been too late for most spring chinook, anyway, since the majority of the fish had migrated through the hydro system by then.

However, the report cited fish survival estimates from the Fish Passage Center that focused on spring chinook, which indicated inriver survivals for spring chinook and steelhead in the lower Snake were down by 20 percent and 50 percent, respectively, from the year before. Survival of the Snake chinook to the estuary was down from 50 percent to 30 percent, according to the FPC analysis, and steelhead was far worse, down from 39 percent last year to only 5 percent in 2001. Many steelhead may have simply stopped migrating due to the low flows, with an unknown number hanging tough until next year when they could resume their journey.

The report failed to mention that most of the spring chinook from the Snake, around 90 percent, were barged through the hydro system this year.

"Due to the drought," said the report, "there may not have been enough water available in the river to resume full spill requirements at all times. Or full spill could have come at the expense of storing water for winter reliability of energy supply. But, providing even three-fourths or one-half of the required amount of spill would have significantly helped juvenile salmon."

The coalition's report also mentioned that private dams on the mid-Columbia "were operated in a manner that was extremely harmful to salmon," citing high mortality in the Hanford Reach this year to fall chinook fry, when it was estimated that 1.6 million of them died from stranding from fluctuating flows. (The loss amounts to about 7 percent of this year's Hanford fry production, which is estimated at 23 million fry, up a few million from last year. But only about 20 percent of the fry typically survive to the smolt stage, and taking future harvest into account, better flows would have increased the number of returning adults by only a couple of thousand fish. More than 140,000 fall chinook returned to the Reach this year, with about half continuing upriver past Priest Rapids Dam.)

Grant PUD spokesman Doug Ancona said it wasn't fair to characterize his utility's operations as being responsible for the high fry mortality. He said Grant couldn't smooth out the large fluctuations in water releases from Grand Coulee this year, where the stranding and consequent mortality of fry was 16 times higher than in the previous two years. Ancona also noted that Grant's two projects spilled more water for fish than any others in the system.

Barging began early at McNary Dam this year to help Mid-C fish through the lower river, but the report downplayed the value of transporting fish. It cited the Independent Scientific Group's 1996 report Return to the River to say "that even if all juvenile salmon could be collected for transportation, three is no evidence to suggest that even minimal survival rates could be achieved, let alone those survival rates necessary to rebuild salmon populations."

Since then, some survival rates have improved by eight times, including those of barged fish. For instance, the fish Passage Center's own continuing study on the subject has found that PIT-tag returns from some Idaho hatchery fish have shown nearly 4 percent smolt-to-adult returns, right in the middle of the 2 percent to 6 percent returns that many regional biologists feel is required to recover the runs.

The coalition's report also failed to address the increased survival of adult migrating fish from less spill this year, borne out in radio-tag results reported recently at a Corps of Engineers' research confab in Walla Walla.

BPA spokesman Ed Mosey was candid about the report. "Their analysis is based on June prices--no responsible utility would wait until June--it's just a hindsight thing.

"We had a big reliability issue," Mosey added. He said if BPA had contracted early for power to maintain spill levels, it could have cost the agency a billion dollars, or even as much as three billion, close to the annual gross revenues the agency generates. -B. R.


[7] BPA ENDS FISCAL YEAR IN RED; SLIGHT LOSS PROJECTED NEXT YEAR

BPA officials are not unduly concerned about the $375 million loss the agency experienced for FY 2001, noting that it represents a small fraction of BPA's $4-billion-plus budget and that the losses could have been much worse. CFO Jim Curtis said the agency is confident that it and its customers "took every prudent action to minimize" the loss. He also pointed out that credits for salmon recovery efforts, authorized under the Northwest Power Act, forestalled a much bigger financial hit. In FY 2001, those credits totaled $592.7 million.

Power purchases were by far the largest expense the agency incurred during the 12-month period that ended September 30. BPA spent $2.3 billion on purchased power, nearly four times the amount spent in FY 2000. Net operating revenues of about $127 million were offset by interest expenses of more than $333 million.

Added to this $206.6 million loss is an additional $168.5 million debit due to an accounting change. Spokesman Ed Mosey explained that this change involves the valuation of purchased power assets (that is, power bought in advance and paid for but not yet used at year's end). The agency's books must now reflect the actual market value of such purchased power rather than its cost or its value at the time of use.

Despite the loss reflected in its accounting statements, Bonneville has cash reserves of $636.7 million. Mosey pointed out that those reserves will be substantially depleted in the near future because several large payments--including a Treasury payment--are due around the first of the year. The agency is projecting $333.3 million in cash reserves for FY 2002.

Projected revenues for the coming fiscal year total $3.57 billion, slightly below the projected $3.66 billion in anticipated expenses. Were it not for the accounting change, expected revenues would be high enough to keep the projected loss to a negligible $8.9 million; with the change, however, BPA expects losses of about $86 million. Revenues and expenses are, of course, always "a moving target," said Mosey. The agency, however, is looking toward a year that appears to promise greater stability: "The combination of lower market prices for electricity, a more stable market going forward and dampening demand due to the economic slowdown should bring energy prices down next year," said Curtis.

Mosey said that projections for next year assume the 46 percent rate hike that took effect Oct. 1 will remain in place. The agency, however, will make efforts to decrease rates this year. It remains to be seen whether that will be possible, but he noted that so far, the weather is cooperating and that a healthy snowpack will certainly help the situation. -Kari Hanson


[8] SO MANY CULVERTS, SO LITTLE MONEY, SAYS GAO REPORT

A new federal study that looks at the impacts of culverts on fish passage released by the General Accounting Office Nov. 26 did not come to any encouraging conclusions. Congressman Norm Dicks (D-WA) asked the GAO to do the report to find out how many culverts could be impeding migrating fish on BLM and Forest Service lands in Washington and Oregon and the factors involved in improving them, along with the results of agency efforts to restore fish passage.

At the current rate of replacement, the BLM said it would take 25 years to eliminate a backlog of 700 projects, while the Forest Service estimated "it would take more than 100 years to eliminate all barrier culverts."

The GAO study found that the agencies estimated the cost of restoring fish passage at over $46 million for culverts on BLM-managed land, and $331 million for fixing culvert-related passage problems on Forest Service lands in both states.

The BLM reported that it had over 2,800 culverts on fish-bearing streams in Oregon, but only five more in Washington. The Forest Service, on the other hand, with its inventory nearly completed, counted nearly 5,600 culverts on fishy streams in Oregon and another 1,800 in Washington.

The report also found that the two agencies had completed 141 projects since 1998, opening up an estimated 171 miles of habitat to spawning fish. "However," says the report, "because neither agency requires systematic monitoring of these completed projects, the actual extent of improved fish passage is largely unverified." The GAO said agency officials use design standards based on scientific research, but lack of funding and staff has precluded post-project monitoring.

Without monitoring, neither agency can ensure that the money spent is achieving its intended purpose, said the report, which recommended that both agencies develop guidelines for monitoring the effectiveness of the work.

Dicks was not happy about the situation. "That magnitude of delay is simply unacceptable," he said in a Nov. 29 press release, "and it calls into question the federal government's own ability to adhere to the Endangered Species Act requirements for fish protection." He said the agencies' priorities must be realigned and planned on meeting with their head officials to press his points.

Meanwhile, a lawsuit dealing with culverts on state lands, filed against the state of Washington in federal court last March, continues to simmer. Filed by Northwest tribes with the assistance of federal attorneys, the suit says about 500 culverts on state roads need fixing to improve fish passage, and they want the state to complete the job in five years. The state's timeline is five times that, with a cost of more than $100 million. The case is still in discovery, with a tentative schedule of June 2003 for a trial date, said Fronda Woods of the WA AG's office.

Woods said Seattle District Court judge Barbara Rothstein ruled on a federal motion that called for striking the state's argument that the federal parties were going into the litigation with "unclean hands" because the feds have quite a backlog of culverts to fix themselves. Washington argued that the feds should fix their culverts first. Rothstein ultimately ruled in favor of the feds, but attorney Woods said the state has reviewed Rothstein's ruling and isn't that upset.

She pointed to a footnote in Rothstein's ruling that the state interprets to suggest that "equitable principles" cited in phase two of the Boldt decision "might" require the feds to replace their culverts, too.

"The court has jurisdiction over the fish," Woods added, "and has the power to enjoin anyone from interfering with them." -Bill Rudolph


[9] ANOTHER BIG RUN FORECAST FOR COLUMBIA RIVER

Columbia Basin fish forecasters have estimated that 333,700 spring chinook will return to the Columbia river next year. That won't top last spring's record run of over 400,000 fish, but will put it firmly in second place, if all goes well.

The state of Washington announced that it has adopted a two-year policy for allocating the spring run between sport and commercial fishers. Using a sliding scale that's based on abundance of Willamette and upriver stocks, the new policy will allow sporties a higher harvest rate when upriver runs are small, and a lesser rate when upriver runs are large. The upshot would be to extend the sports fishery through April into May when runs are large without jeopardizing wild upriver fish.

WDFW's Joe Hymer said managers haven't completed forecasts (to the mouth of the Columbia) for the Snake River yet, but they expect 40,000 spring chinook heading for the Wind River and 21,800 to the Yakima, where 21,500 fish returned last spring. -B. R.


[10] CHUM SALMON SPAWNING SUCCESSFULLY IN LOWER COLUMBIA

With the recent deluges, BPA has been having a tough time keeping Bonneville Dam's tailwater elevation at 11.5 feet to keep ESA-listed chum salmon from digging redds in the lower river in places that may be de-watered later on this winter. The recent high tides only made matters worse, but running flows at powerhouse minimums (70 kcfs) finally brought levels down, according to BPA's Scott Bettin.

With all the rain, most of the chum salmon aren't just spawning in the mainstem like last year, when low flows and little rain kept the many of the listed fish from reaching two streams on the Washington side of the Columbia River. USFWS' David Wills said recent "peak counts" in Hardy and Hamilton creeks found 470 and 380 fish, respectively, significantly higher than last year's peak counts 30 and 130 fish. Wells cautioned that final fish numbers are likely to be different after biologists have more time to analyze their data.

The fish in Hamilton Creek are actually spawning in the township of North Bonneville, near the Chevron station at a spot called Hamilton Springs. In the mainstem, about 300 fish were thought to be spawning near the creek mouth near Ives Island and another 300 or so were spawning near the 1-205 bridge close to the Oregon shore.

"The chum are reacting to the same conditions as the spring chinook," Wills said of the large numbers of returning fish this year.

Overall, the lower Columbia chum are doing quite well, with 5,000 to 10,000 if them expected back before the run is finished, said Joe Hymer from the WDFW office in Vancouver, WA. According to the 1997 NMFS status review, the chum rum hasn't topped 10,000 fish since 1955, when about 11,000 fish returned.

Hymer said about 3,000 wild chum had been counted recently in Grays River, near Chinook, WA and approximately 2,000 in the area below Bonneville Dam, spawning on both sides of the river. Hymer said the fish prefer to spawn in areas where fresh water springs are located. "It's the kind of habitat that used to be measured in miles," Hymer said. Now it's measured in meters." Chum spawn the latest of all salmon species in the Columbia and are first to emerge from gravel beds in the spring.

Some chum have actually passed Bonneville Dam, been tagged, then found again 30 miles downriver. Others have been found spawning in shallow areas near Washougal at St. Cloud, said BPA's Bettin, who noted that biologists found eight areas where the chum spawned below Bonneville dam last year, but 25 different places this year--with only one spot--the area near Ives Island--that is affected by hydro operations.

Nearly half a million chum returned to the lower river in the early 1940s, but numbers dropped drastically by 1944 and have never topped 50,000 fish since then. Numbers tailed off in the 1950s to below 10,000 fish annually.

The NMFS status review found half of the biological review team members concluding the ESU at a high risk of extinction, "the remainder concluded that the short-term extinction risk was not as high, but that the ESU is at risk of becoming endangered." The chum ESU was listed for ESA protection in March 1999. -B. R.


[11] BPA RELEASES DRAFT JUVENILE STUDY OF SPRING MIGRANTS

BPA released a draft report yesterday that takes a closer look at last spring's fish survival through the hydro system than a NMFS memo reported in September, but found that spill benefits were "not strongly exhibited." However, the agency said that didn't mean such benefits didn't really exist.

The earlier results were focused on Snake River spring chinook, which showed the lowest survival rates since PIT tag studies began in 1993. In its September memo, NMFS believed the low survivals were "a consequence of low flow and lack of spill. Because both conditions occurred simultaneously, determining how much each factor contributed to the decreased survival will be difficult." The agency said Snake spring chinook survived at a 24 percent rate, about half that found in a normal water year, but steelhead were hit a lot harder, showing less than a 3 percent survival rate to the Columbia River estuary.

Over 90 percent of the spring migrants (both chinook and steelhead) were barged from the Snake, so fewer fish were actually migrating inriver this year than on average. According to the latest report, "Only a very small percentage of unmarked Snake River fish were subjected to the poor migratory conditions faced by migrants passing downstream through the hydropower system."

The new report, completed by NMFS' Seattle-based science center and U.W. researcher John Skalski, found that Snake survivals were slightly higher, 27.6 percent for spring chinook and a little over 4 percent for steelhead. The chinook survivals were similar for upper Columbia spring chinook PIT- tagged at hatcheries ( 28 percent for Winthrop fish that must pass eight dams and 33.5 percent for Leavenworth fish that pass six dams) and higher (48.7 percent) for the summer-fall chinook released at Rocky Reach Dam that must pass seven projects.

The new draft report attempts to quantify the effects of spill on survivals in the lower reaches of the Columbia, but recognizes limitations in the analysis--from few PIT tag detections for some stocks to timing blocks for the study that weren't randomized because they were divided into pre-spill, spill and post-spill groups. It also said the results were confounded by another trend observed over the years, with survival increasing gradually through the early part of the season.

For nine different stocks, only two showed evidence that spill could account for increases in survival and they had such small sample sizes in the period after spill stopped, there were large standard errors and "poor power to detect differences.

"But in five of the stocks where survival during the spill period was significantly different from the other periods, it was higher," the draft report says." However, in the other two cases (Snake River spring-summer chinook salmon and steelhead migrating from Lower Monumental Dam to McNary Dam), survival was significantly higher in the pre-spill period than in the spill period."

The report also suggested that low steelhead survivals could have been affected by increased predation by Caspian terns; water clarity, and residualism.

"The fact that spill benefits were not strongly exhibited this year does not mean they do not exist," says the report. "As mentioned above, the experimental design that we happened upon this year was by no means ideal." The scientists said the low flows and limited or no spill in the drought year added 10 to 30 days' migration time from Lower Granite to Bonneville Dam, which left some fish to face higher reservoir temperatures.

They said a "more rigorous experimental design" would be needed to resolve the issues and that the feasibility of such a complex experiment "would require careful consideration."

A "preliminary" analysis of the spring migration completed by the Fish Passage Center said that increased spring survival evident between McNary and John Day dams was "a result of spill." -B. R.

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