NMFS Calls For Mediation In BiOp Lawsuit
 Methow Valley Water Lawsuit Gets Messier All The Time
 Council Shrugs Off Scientific Review, Shoots Down Methow Land Buy
 Irrigators Win Skirmish With State Over Flow Issues
 PacifiCorp Drops Bid For Priest Rapids; Yakamas Persist
 Flow Reductions On Upper Columbia Spark BC Probe Of Fish Kill
 Good Returns Slated For Snake River Spring Chinook Run
 Marker, Allee Named To NW Power Planning Council F&W Positions
 NMFS LAWYERS ASKS JUDGE TO ORDER MEDIATION IN BIOP LAWSUIT
NMFS attorneys have asked OR District Court Judge Garr King to order mediation to settle the lawsuit (National Wildlife Federation v. NMFS) environmental and fishing groups filed last May, challenging the legality of the 2000 hydro BiOp. King said Dec. 20 he would take the NMFS request under advisement and asked the parties where they stood on the issue and whether they could pursue mediation and briefings at the same time.
King had already suggested mediation and assigned a consulting group the task of scoping it out. But in a Dec. 12 letter to the court, the US Institute for Environmental Conflict Resolution said that after interviewing the parties, it had concluded the groups had not agreed to pursue mediation.
King said he would defer ruling on a mediation order until he decides whether a judge or magistrate is available to undertake the process, but will issue his decision soon.
Department of Justice attorney Fred Disheroon said the plaintiffs and some of the tribes are "not too interested" in mediation, but the judge could order it anyway. He said NMFS suggested it because the government hopes mediation could come up with a BiOp that satisfies everybody. Disheroon said the government considers a lengthy lawsuit to be wasteful when mediation could provide an opportunity for all parties to settle their differences and get a coordinated effort under way.
Plaintiffs in the case say the hydro BiOp's reliance on off-site mitigation efforts to help boost listed stocks is misguided and illegal. They claim this approach relies on "speculative and voluntary actions" by other federal agencies and state and private entities outside of the authority of the Action Agencies--the BuRec, Army Corps and BPA--involved with the hydro system.
"We don't see where things could go," said Earthjustice attorney Todd True. "But we will do what we have to do." Like Disheroon, True said he hopes mediation can come up with an agreement that satisfies everybody, but reiterated that his group doesn't think the new BiOp satisfies the law.
John Saven, director of intervenor defendant Northwest Irrigation Utilities, agreed with the federal motion. "I think people are better off at the end of the day talking, trying to resolve their differences," Saven told NW Fishletter. He said there is a compelling body of evidence to justify the BiOp, and his group would support it if it comes to that. But if the case goes into mediation, "we would like to put a few things of our own on the table, including actions for fish that are more beneficial than those in place today. Mediation would give us an opportunity to explore those issues."
Plaintiffs in the suit include the National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations, the Institute for Fisheries Resources, Idaho Rivers United, Idaho Steelhead and Salmon United, the Northwest Sport Fishing Industry Association, Friends of the Earth, Salmon for All, Columbia Riverkeeper, the Northwest Energy Coalition, the Federation of Fly Fishers and American Rivers.
Intervenor defendants include Northwest Irrigation Utilities, the Public Power Council, the Franklin and Grant County Farm Bureau Federations, the Washington Farm Bureau Federation, and the Inland Ports and Navigation Group.
Amica include the Umatilla and Warm Springs Tribes, the Yakama and Nez Perce Tribes, the Northwest states and the NW Power Planning Council. -Bill Rudolph
 METHOW VALLEY WATER LAWSUIT GETS MESSIER ALL THE TIME
The federal government has filed another brief in a contentious lawsuit [Okanogan County et al v. NMFS et al] over water for farming and ESA-listed fish. It shows little evidence of a new-found spirit of cooperation in the Northwest that some NMFS officials have been touting at regional policy get-togethers.
The feds' December brief contested allegations by water users in Washington's Methow Valley that NMFS has trampled over their state right to water, a position supported by Okanogan County, another party in the litigation.
The county and others filed for summary judgment in Eastern Washington District Court after NMFS held hostage renewal of "special use" permits that irrigators needed because some of their ditches crossed USFS land.
By tying issuance of the Forest Service permits to reductions in flows by diversions mandated in biological opinions, the federal fish folks stirred up local residents something fierce. The feds say that reduced flows for irrigators is only an indirect action of the BiOps, and therefore has nothing to do with a water right.
A reply to the feds' brief filed a week ago has kept the pot boiling. The plaintiffs also took issue with the government's assessment of "critical" habitat in their latest filing.
"The plaintiffs complain that instream flow requirements are not required to avoid jeopardy. Plaintiffs are simply wrong," said federal attorneys in their Dec. 6 memorandum. "The record demonstrates that maintaining an adequate level of flow in these areas is necessary for the survival and recovery of these listed species."
The feds contend that case law is "uniform," giving the USFS "authority to regulate activity occurring on National Forest System lands, no matter what interest is claimed by the private actor, be it a right of way, an easement, an unpatented mining claim or a water right."
But plaintiffs say a 1976 repeal of 1896 legislation limits federal authority over imposition and enforcement of instream flow conditions on private water rights. Further, they cite the Federal Lands Policy and Management Act [FLPMA], passed in 1976, which expressly says that all agency actions "shall be subject to valid existing rights." Plaintiffs say that the Forest Service "has turned this statutory provision on its head, making valid existing rights subject to USFS action on instream flows. This is a direct violation of FLPMA that the defendants do not explain and cannot excuse."
Plaintiffs' attorney Galen Schuler points to the federal brief's discussion of its "Habitat Approach" as another important issue.
Federal scientists have developed a way of assessing the listed species' habitat that uses a matrix of 18 factors to determine "properly functioning conditions [PFCs]." The feds say that a potential activity, such as irrigation, that reduces river flows is likely to jeopardize the species' existence or adversely modify its critical habitat, having a negative effect on PFCs.
As for the ditches in question, the plaintiffs say the cases cited by federal attorneys "hold that the agency should consider any indirect effect from a federal action, but they do not prove that the USFS may regulate beyond its discretion."
In an earlier filing, plaintiffs cited comments by NMFS officials that explained the federal position in a candid way; all habitat was deemed critical and any adverse modification jeopardized the fish.
But the feds say that the plaintiffs' arguments "rely largely on internal staff electronic colloquy" while the Habitat Approach was being developed and they "dispute the interpretation Plaintiffs impute to these snippets from the colloquy; they do not represent the position of NMFS."
The feds say the 1999 document that describes the process and principles of their approach is intended to provide "guidance" and doesn't have to be adopted, as plaintiffs allege, through notice and comment and rulemaking. They say that such conditions "apply only to legislative or substantive rules--not to interpretive rules, general statements of policy, or rules of agency organization, practice or procedure."
Since their Habitat Approach is not a legislative rule, but "simply an analytical tool that NMFS has developed to assist in forming its biological opinion with respect to actions affecting salmon habitat," there is no "binding limitation" on agency authority. And they say NMFS' characterization of the document as "simply providing guidance and informing the public of a process that NMFS may use to analyze actions that affect salmon habitat" should be entitled to some deference.
Schuler and his clients don't feel that way, pointing out that the feds' Habitat Approach is a rigorous, detailed methodology that "applies to every ESA consultation in the Northwest...and the public is entitled to a justification of this interpretation of the ESA through public notice and comment."
Plaintiffs say that the NMFS Habitat Approach shows no distinction between survival and recovery of a species, so that the agency "evaluates the effects of an action not on whether it will jeopardize a species or adversely modify its critical habitat, but on whether it helps NMFS to restore idealized properly functioning conditions." NMFS has set its baseline instream flow conditions in the ditch BiOps by estimating flows before the valley was settled and water was used for irrigation.
The larger issue--whether low instream flows are mostly natural phenomena or caused and possibly "aggravated" by federal authorization that allows the water to cross federal land--is at the heart of the plaintiffs' argument. They strongly feel that "natural conditions" are the overriding cause of low instream flows.
There is already evidence that changes to Methow aquifer levels are occurring because of ESA mandates that have cut flows in some irrigation ditches, where leakage is assumed to have recharged aquifers, in some cases, for the past hundred years.
Several lakes have dropped 15 to 20 feet since a section of the Wolf Creek ditch was piped, according to Methow resident Dick Ewing, head of the valley's watershed planning unit. Some residents have had to drill deeper wells and a creek that supplies the local fish hatchery has lost water.
Ewing, who lives in the area served by the Wolf Creek ditch, said the aquifer that normally fills the nearby lakes also contributes to the flow in the Methow River itself and provides an important habitat component for chinook salmon. "Now that the ditch has been piped," he said, "a means to inject ground water must be developed to duplicate the ditch leakage."
But he pointed out the state has told Wolf Creek area residents that the district's water right is only for agricultural and irrigation uses and that it doesn't consider ground water leakage from the ditch as a beneficial use. -B. R.
 COUNCIL SHRUGS OFF SCIENTIFIC REVIEW, SHOOTS DOWN METHOW LAND BUY
Power Planning Council members have voted down a proposal to fund $2.5 million worth of conservation easements in the upper Methow Valley, turning its back on a nearly unprecedented second review by its Independent Scientific Review Panel, whose job it is to judge the merit of proposals in BPA's fish and wildlife program. Members also heard a pep talk from regional NMFS administrator Bob Lohn, who stressed the importance of the sub-basin planning process in implementing the hydro BiOp. And at the last minute, the group amended Council by-laws to allow Washington council member Larry Cassidy to serve another one-year term as chairman over the objections of Oregon member and vice-chair Erich Bloch, Oregon Governor John Kitzhaber, and several environmental groups.
Funding for the Arrowleaf proposal would have allowed the completion of a public/private partnership purchase of 1,100 acres of land along the Methow River, designed to keep the land free from future development. But questions arose after some members of the science panel toured the area last October and observed the river was completely dry. BPA pushed for another review to see if the proposal was truly as beneficial to fish as originally thought.
The science panel's first review had OK'd the proposal for funding as a "high priority" with direct benefits to ESA-listed fish stocks. After its second look, the panel still supported the proposal, though it said the project had fewer benefits for spring chinook than previously believed, but would offer more protection of passage, rearing and "perhaps some spawning" for listed steelhead, though numbers were lacking.
"We were informed that the river is too high and turbid to have actual data on redd counts of steelhead," said the Jan. 11 report. "As with chinook (above), there should be excellent rearing habitat when there is floodwater in spring-summer, even though habitat and some fish are probably lost during the drying phase."
The report had some Council members concerned. Though he thought the ISRP had been backed into a corner without enough time to gather adequate information, Idaho's Jim Kempton said the report was based on subjective values, not clear benefits. He criticized its "lack of objectivity."
Washington Council members stuck with the ISRP's conclusions. Chair Larry Cassidy said the Council was "in a very tricky arena" if the members voted to de-fund a project that had passed two scientific reviews. "What about the future?" Cassidy wondered.
But Kempton was undeterred. He took issue with the photo of the dry riverbed on the cover of the latest report. He said people would wonder "What's the Council up to…?" if members voted for it.
Tom Karier, Washington state's other council member, said state laws were not strong enough to protect the habitat. "We buy to offer extra protection," he said. "The benefits are still there," he added. "It's different from what we thought, but they're still there." He said it would not be a good precedent to turn down a project like that.
But Oregon member John Brogoitti said it wasn't the Council's responsibility to make up for weaknesses in state laws. He moved to rescind the funding for Arrowleaf and place it in a fund for water acquisition in other tributaries that would help satisfy a "Reasonable, Prudent Alternative [RPA]" in the hydro BiOp.
Oregon's other Council member, Erich Bloch, who originally supported the purchase, said he changed his mind because the scientific benefits for the project were "less than we thought." He said it was a difficult decision to make, but when it came down to the best use of the money, it would be to dedicate the funding to satisfying RPA 151 of the 2000 hydro BiOp for tributary water acquisition.
Montana members split their votes. Leo Giacometto said the proposal was trying to right a wrong--Washington's exempt well law--that allows any private party to drill a well for personal use and draw up to 5,000 gallons a day.
Public testimony by Methow resident John Hayes raised the specter of the land being eventually subdivided into 5-acre parcels with the potential for a well on each piece of land. But other testimony from Ken Sletten, a software engineer who spends part of each year in the area, contradicted Hayes. "What needs to be protected is already protected," Sletten told the Council. He said a test well in the area that drew thousands of gallons of water only dropped the river level 0.1 inches. Sletten called the proposal another attempt at "rural cleansing." He also took issue with previous comments by NMFS assistant administrator Donna Darm who was quoted in recent court documents, calling for designating all listed fish habitat as "critical."
The Council voted 5-3 to rescind funding for Arrowleaf and quickly shifted gears to amend its by-laws in order to vote Larry Cassidy in as chair for another year. Vice chair Erich Bloch protested the move, saying it was "an abuse of the system to accomplish a very narrow and short-term purpose." Bloch presented a letter his governor had written to other Northwest governors urging them to oppose changing the by-laws "to preserve the Council as a serious and credible regional institution."
As vice chair, Bloch had expected to move up to chair this year. He has locked horns with other members in the past, supporting more spill and flow efforts for fish migration than other Council members recommended during last year's drought conditions, when regional planners were concerned about power reliability.
Several environmental groups also protested the change. But Council members quickly amended the by-laws, praised Cassidy's leadership skills and voted him in as chair for a third term. Idaho member Judi Danielson was voted vice chair, leaving Bloch out in the cold.
Other members pointed out that the by-laws had previously been suspended to allow extra terms when both Oregon's Angus Duncan and Montana's John Etchart served as chair. Karier pointed out that a term limit for chair had not been in the original by-laws.
Regional NMFS administrator Bob Lohn made an afternoon appearance to remind the Council how important their subbasin planning process is to NMFS and implementation of the new hydro BiOp. He also outlined the principles developed after a December federal/regional NMFS confab that included James Connaughton, chair of the White House Council on Environmental Quality.
Lohn said the Administration will support environmental stewardship, science-based decision-making and a federalism that gets past the issue of local input to local involvement. He said the government would also support an innovative partnership between US agencies and private landowners and develop guidelines for compliance to clarify what it takes to satisfy governmental ESA mandates.
Lohn said development of three to five year-long habitat conservation plans will take Northwest salmon recovery efforts "the next step," along with incorporating the ways artificial fish production can be included. He said interim recovery goals for the Columbia Basin should be announced by mid-February. NMFS is also trying to get a rough "ocean index," Lohn said, "to begin to separate out what part the ocean did and what we did" to improve salmon returns.
Lohn said there is a willingness "within the federal circle" to support more funding for salmon recovery efforts. "With subbasin planning," he told the Council, "you make a case for additional funding." Though he pointed out that there is substantial feeling in other parts of the country that the Northwest is viewed as a "money pit," an agriculture bill being is developed at the national level that could bring in more monies to aid salmon. -B. R.
 IRRIGATORS WIN SKIRMISH WITH STATE OVER FLOW ISSUES
Mainstem Columbia/Snake irrigators won a round in court last week when a Benton County judge ordered the state DOE not to issue any new water rights permits based on NMFS flow targets as long as the case is being heard. The irrigators had renewed an earlier lawsuit against the state when a settlement fell through after the state promised that several new permits would be issued. Another hearing has been scheduled for Jan. 31.
The main issue for irrigators is that the state has quietly supported the NMFS "no-net-loss" water policy for the mainstem Columbia, which means that any new water rights must be balanced by the retirement of older water rights. Irrigators say the NMFS policy doesn't track with the findings of federal scientists, which conclude that augmented river flows, especially in spring, don't necessarily improve juvenile fish survival. But state water policy is sticking with the federal policy, including support for the flow targets mandated in the hydro BiOp.
However, DOE was willing to issue a few new permits, provided that users didn't withdraw water from the Columbia during July and August. Such a condition makes them functionally useless, said water consultant Darryll Olsen. The DOE's draft report admits that NMFS BiOp target flows are typically not met during those months even in average flow years like 1998 and 2000.
"We are optimistic," said irrigators' attorney James Buchal, "that the Court will ultimately enjoin Ecology from unlawful insistence upon the achievement of flow targets that are designed to be impossible to achieve, and premised upon benefits to salmon that, if they exist at all, are so infinitesimal as to be impossible to measure."
The latest flap comes on the heels of a new water initiative for the Columbia River, pushed by Gov. Gary Locke and led by Department of Ecology director Tom Fitzsimmons, that is being billed as including both national and regional peer review, along with facilitated negotiations among water users, power producers, fishing groups, environmentalists, municipal governments and recreationists. Gov. Locke said federal agencies, other Northwest states and tribal governments have been invited to take part, with the final results due by December 2002.
In a related issue, eastern Washington carrot grower Bud Mercer and his son Rob filed affidavits Jan. 7 as part of a request by irrigators' attorneys to the Klickitat County Prosecutor's Office to investigate remarks made in a recent conversation involving the Mercers and Fitzsimmons concerning a December meeting. The request accuses Fitzsimmons of witness tampering. The office is now looking into the matter.
What do carrots and salmon have in common?
The Mercers said Fitzsimmons "made it quite clear that as long as we (Mercer Ranches) were a part of a lawsuit with Columbia/Snake River Irrigators Association that he 'did not feel obligated to continue to support the solutions' that had been discussed at the Dec. 5 meeting. He also made it clear that he felt like the lawsuit would tie his hands and deter him (the Department) from issuing any more water permits whatsoever."
DOE spokespeople say it's all a misunderstanding. Locke water advisor Jim Waldo told the Tri-City Herald that Fitzsimmons' remarks were not a threat, but were addressing a concern over the ability of the agencies to work on the issues while being sued.
Mercer has several permit applications in the hopper at DOE. The oldest is a request for 8 gallons a minute to run a carrot processing facility. It has been in the state bureaucratic machinery for 14 years. DOE has twice told Mercer a permit would soon be issued for the facility, but none yet has, according to consultant Olsen.
The nine permits DOE was tentatively going to issue add up to about 360 cfs on paper, said Olsen, though in reality actual usage would be about half that much water. Olsen said 360 cfs is actually less than 1/100 of the daily net variation in Columbia River flows as seen on July 1, 2001 (in the middle of a drought year) and less than 0.5 percent of the river flow at its lowest daily rate. "In effect," said Olsen, "the impact of the proposed permit water withdrawals would be imperceptible when compared to even the lowest water conditions of the existing system." -B. R.
 PACIFICORP DROPS BID FOR PRIEST RAPIDS; YAKAMAS PERSIST
Whether Grant made an offer PacifiCorp couldn't refuse or a Dec. 21 King County Superior Court ruling tipped the odds, PacifiCorp has dropped its FERC relicensing bid for Grant County PUD's Priest Rapids hydro project and signed a new contract to buy Priest Rapids power from Grant after its current contract expires. By signing on with Grant, PacifiCorp has agreed not to compete with the PUD for the project license, forcing it to withdraw from the Yakama Hydroelectric Project LLC it had formed with the Yakama Nation to pursue a competing license application for the two-dam project.
Grant's new contracts included a no-compete clause, which PacifiCorp and Puget Sound Energy had challenged in King County Superior Court--along with Grant's requirement that current purchasers sign new contracts by Dec. 31 even though their existing contracts don't expire until 2005. On Dec. 21 the court ruled Grant's no-compete clause was legal, and the two IOUs decided not to pursue their challenges any further.
The Yakama Nation has assumed sole ownership of the Yakama Hydroelectric Project LLC and intends to continue working on the competing license application for Priest Rapids. "The separation was amicable and we continue to maintain a strong relationship with the Yakamas," PacifiCorp's Toby Freeman told NW Fishletter.
The Yakamas reportedly intend to find a new partner for their efforts--no doubt to replace PacifiCorp's financial support for the relicensing effort. While the agreement between the tribe and PacifiCorp was a 50-50 partnership, the company was funding the development costs, and the tribe was to repay its share at a later date. Without PacifiCorp's involvement, the Yakamas will need some other source of financing.
Both Freeman and a tribal representative also said the utility and the Yakamas are still in discussions about the tribe's bid to take over some of the Pacific Power facilities used to serve its reservation. This issue is completely separate from the relicensing effort, both parties said.
PacifiCorp and Puget Sound Energy were the last of the 12 members of the Grant Purchasers Group to reach agreements with Grant by the PUD's Dec. 31 deadline. The Dec. 21 court decision had some influence on PSE's decision to sign with Grant, said PSE VP Bill Gaines. But Gaines also said the PacifiCorp alternative "began to unravel" late last month after a number of public utilities signed new agreements with the PUD. "There was no longer a critical mass for PacifiCorp's proposal," Gaines said, "which is in some ways unfortunate."
Gaines also said PacifiCorp's and the Yakama's decision to file a competing license application was a factor in the PUD's decision to improve its offer to the purchasers group. "There is no question the competitive effort improved the offer and made it more attractive," he told NW Fishletter.
PacifiCorp's Freeman said Grant's final offer was "about a $50 million better deal than was offered last May," but is still "appears that the contract is worth about half of what we've enjoyed historically." He said PacifiCorp--like the other members of the purchasers group--signed up for all of the power products Grant was offering.
The contracts are the same for all the parties involved, confirmed PUD GM Don Godard, although the amount of power each utility receives will be different. The shares the Purchasers Group members receive after relicensing will be based on the percentage of output they now receive from the 1825-MW Priest Rapid project's two facilities, Wanapum and Priest Rapids.
PacifiCorp was receiving about 16 percent of the output, Godard said, and initially will receive an equivalent amount "with very little reduction." However, that includes PacifiCorp's share of all the products Grant offered: power surplus to Grant PUD's needs from the 70 percent of the project's output to which FERC ruled the PUD was entitled; displacement power, or additional project power made available by Grant's continued purchase of some BPA power; and revenue generated from Grant's sale of 30 percent of the project output at market rates, per FERC's and the court's direction.
"Grant is pleased that our historic purchasers believe it's in their interest to work with Grant," said Godard. "It's been a successful partnership in the past, and we hope it will be in the future."
Also signing up were the Idaho co-ops that FERC had ruled were entitled to some output from Priest Rapids: Kootenai Electric Cooperative, Clearwater Power, Idaho County Light and Power, and Northern Lights and Snake River Power Association. Godard said the five co-ops together will receive from 3 percent to 5 percent of the project's output.
Godard said all of the power is priced at cost. Whatever profits the PUD makes from selling 30 percent of the output at market will be divided among the purchasers, according to their earlier shares. Likewise, if project costs are higher than market, then purchasers will make up the difference.
Godard also said Grant hopes to meet with the Yakamas to see if the PUD can address the tribe's issues in its relicense application, so that eventually the Yakamas might support the PUD's application.
While resolving how the project's economic benefits will be allocated after 2005 has been a major issue, equally important, in Godard's view, will be dealing with the natural resource issues that still must be resolved through the relicensing process. How those issues are settled will affect the project's output and therefore increase the cost of power, he said. -Jude Noland
 FLOW REDUCTIONS ON UPPER COLUMBIA SPARK BC PROBE OF FISH KILL
Investigators from both the Canadian and BC governments are probing the killing of an estimated 18,000 fish downstream from the Keenleyside Dam near Castlegar in southern BC last summer. On Dec. 19, they seized six boxes of files from BC Hydro offices.
BC Hydro spokeswoman Elisha Odowichuk said Hydro was prepared to give investigators any documents they requested. "It is unusual for us to have a warrant served," she said. "It kind of caught us off guard. For us it's very disappointing because we usually have a very good relationship with the department (of fisheries and oceans)."
Randy Nelson of Fisheries and Oceans said a search warrant is "pretty much standard procedure."
The fish kill occurred after BC Hydro cut flows on the Columbia River in response to a July 9 request from BPA for the reduction due to concerns over water levels in Lake Roosevelt. After flow levels were reduced from 25,000 cubic feet per second to 15,000 cfs on July 10, an estimated 18,000 fish, mostly rainbow trout, were killed.
BC Hydro manages Columbia River water flows in the province for BPA under the 1961 Columbia River Treaty. Under the treaty, Hydro could have accepted or rejected the BPA request. "We talked to our environmental staff and we didn't see a reason we couldn't bring the level down," Odowichuk told the National Post last week. "We did have salvage crews on site; however, despite our best efforts, fish mortalities of about 18,000 did occur." Odowichuk also said Hydro had BC government approval to drop the river to even lower levels a week later for maintenance work.
She added that the fish salvage crews were not as experienced as some had been in the past, and the operation was made more difficult by an unexpected heat wave that increased temperatures to 104 degrees F. "The lack of experience and the potential for the water to be super-heated complicated things," she said.
Nonetheless, Hydro crews were able to rescue an additional 18,000 fish from July 10 through July 13.
Steve Wasylik, a lead investigator with the BC Ministry of Water, Land and Air, said the joint federal-provincial investigation may test both Canada's federal Fisheries Act and the Columbia River Treaty. "That may be the crux of the investigation," he told the Post. "It may be the Columbia River Treaty versus the Fisheries Act."
Wasylik also said it may be months before the investigation is finished. Investigators will file a report to government officials, who will then decide whether or not charges should be laid. He said under the Fisheries Act, BC Hydro could be fined up to $100,000 or ordered to mitigate the environmental damage.
In 2000-2001, downstream benefit payments made to the BC government under the Columbia River Treaty totaled about C$600 million. -Brian Lewis
 GOOD RETURNS SLATED FOR SNAKE RIVER SPRING CHINOOK RUN
Regional fish managers have released their early estimate for this spring's chinook run on the Snake. There won't be as many as last year, when 237,000 fish made it to the mouth of the Columbia River. But they're predicting over 168,000 fish, with nearly one-third of them expected to be wild chinook currently listed under the ESA.
The number crunchers have estimated that almost 68,000 Snake springers made it back to the Columbia last year. That's about 80 percent more than their pre-season prediction last winter. The new numbers have some river watchers scratching their heads, since the forecast shows that the salmon swamis were less than 2 percent off in their prediction of the hatchery run, which came in at 169,600 fish.
But ODFW fish manager Curt Melcher said many summer run fish were early last year and were counted with the springers. Biologists consider chinook reaching Lower Granite Dam after June 17 part of the summer run.
He said the estimators feel good if they come within 25 percent of the actual returns since they rely on several assumptions--including one that says the ratio of wild jacks to adults is the same for hatchery fish. The biologists also rely on the ratio of marked to unmarked jacks at the dam to determine the ratio of wild to hatchery fish. Currently, said Melcher, unmarked fish make up about 30 percent of the spring/summer chinook run on the Snake. He said that translates into about 50,000 wild Snake springers making it back to the Columbia this year.
Non-Indian commercial harvesters may catch three times more springers than last year, or about 20,000 fish, said WDFW harvest manager Cindy LeFleur at this week's meeting of the Power Planning Council. The big change is a result of last year's tests of tangle nets, where fishermen released unmarked wild fish while keeping marked hatchery fish. LeFleur said direct mortality of around 10 percent was acceptable in the fishery using bigger mesh nets, since the non-Indian commercial and sport fishery is being managed to catch only an estimated 2 percent of the run, while tribal fishers are allowed 12 percent. Non-Indian commercial fishers are also expected to have recovery boxes on board, to help revive wild fish after they are pulled from the gear.
Though last year's jack counts are down about 50 percent from 2000, when they signaled a huge return for 2001, fish managers are still counting on a spring run better than half of last year's return because of an expected good show for fish returning after three years in the ocean, In recent years, three-ocean wild fish have done poorly compared to past years, when they sometimes made up about half the run. The 3-oceans would have migrated to sea in 2000.
More than 500,000 spring chinook returned to the Columbia River last year, with 416,500 considered upriver fish that passed Bonneville Dam. This year's grand total for the springers is expected to come in a bit lower at 418,500 fish, giving both sporties and tribal fishermen lots of time on the water. There will be plenty of steelhead as well. The combined upriver run is estimated at nearly 448,000 fish. That's down from last year's whopping 630,000 steelhead--a real surprise since the fish managers had pegged the run at less than half that. -Bill Rudolph
 MARKER, ALLEE NAMED TO NW POWER PLANNING COUNCIL F&W POSITIONS
The Power Planning Council announced Dec. 20 that acting F&W division head Doug Marker has been chosen to take over that position permanently. Marker has spent 11 years on the Council staff and fills the spot vacated by Bob Lohn, who now serves as Northwest regional administrator for NMFS.
A new position has been filled by Brian Allee, former director of the Columbia Basin Fish and Wildlife Authority. Allee will manage policy and program implementation for the Power Council and will focus on integrating sub-basin planning with recovery planning under the ESA.
"The completion of sub-basin plans is a monumental task that will require collaboration throughout the Basin," Marker said. "Brian Allee's strong scientific and management background, as well as his established relationships with many of the state, tribal and federal fish and wildlife managers in the region, will be invaluable to us as we go forward." -B. R.
LINKS/DOCUMENTS FROM NW FISHLETTER 136:: Below are listed links and documents referred to in the text of NW Fishletter issue 136.
THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.
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