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NWF.176/Mar.15.2004
[1] Feds To Announce Their Summer Spill Option By Mar. 26
[2] Oregon Offers Little Support For BPA's Summer Spill Proposal
[3] DeFazio, Nine Other NW House Members Endorse Spill Study
[4] Latest News From BiOp Battle Fronts; Idaho, Irrigators Join Fray
[5] Spring Run Starts Slow At Bonneville Dam, But Hopes Are High
[6] Buoyed By Niners' Ruling, Farmers, Builders Contest Steelhead Listings
[7] Full Ninth Circuit Panel To Hear $5.7 Billion Cushman Claim
[8] PacifiCorp Files Klamath River Hydro Project Relicense

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[1] FEDS TO ANNOUNCE THEIR SUMMER SPILL OPTION BY MARCH 26

Federal agency executives will choose a "draft" option for evaluating a reduction in summer spill by March 26, said Greg Delwiche, BPA's Vice President for Generation Supply, at last week's meeting of the Northwest Power and Conservation Council.

The execs' choice will be one of seven options that ranges from no spill for July and August that could save $77 million a year to full BiOp spill. It seems likely that that the execs may go for a middle-range option that calls for spilling water for fish only through July that could save ratepayers $42 million to $54 million a year.

Delwiche said the draft proposal would also include a specific offset package to make up for fish numbers lost from the spill cut. Likely choices will be increasing the bounty program for salmon predators like pikeminnow and improving juvenile survival in the Hanford Reach by reducing river fluctuations. There is also a slim possibility that some portion of the commercial catch could be bought out, such as a portion of the summer salmon harvest by lower Columbia River non-Indian gillnetters.

In their Mar. 26 proposal, the action agencies intend to be responsive to the region's comments on the summer spill options and projected offsets, which included many critical analyses from state and tribal fishery agencies. Delwiche said he actually hoped to get the proposal out a few days before a Mar.26 conference call that would take clarification questions. Then a one-week comment period would follow.

After the agencies work through those responses, which will be aired at the April 16 regional executives' meeting, the public will be allowed to comment one last time with a final decision scheduled for sometime during the following week.

Washington council member Tom Karier was concerned that operations to reduce fish stranding in the Hanford Reach area may not begin before a proposal is selected, but Delwiche said that the effort to reduce fluctuations will soon commence.

Karier also questioned an issue brought up in comments by state agencies and tribes--that ending summer spill at certain projects would increase predation on juvenile salmon by pikeminows because it could give the predators a chance to "move in under the dam." State agencies and tribes said it could impact up to a million fish.

The Washington council member wondered if there was a way to monitor this operation, or if there were other studies that addressed this issue

Corps of Engineers' spokesman Witt Anderson said his agency's biologists found that comment about increased predation "didn't ring true" with their knowledge of the predators' behavior at the dams, but he said the question will be addressed.

Idaho Council member Jim Kempton asked Delwiche if BPA was going to initiate discussions with Idaho Power over the possibility of shaping flows as one of the alternatives in the original offsets.

Delwiche said his agency would like to see those who are suggesting such an operation to show the benefit as an offset. He pointed out that the water is "quite warm" at that time of year.

Montana council members pressed for consideration of their pet policy proposal that is part of the entire Council's new program, the evaluation of reduced, but steady flows from the state's major reservoirs to lessen adverse impacts to resident fish. In most years, such an operation would draft Montana storage only half as much as now called for in the BiOp, which could save ratepayers $5 million a year.

Delwiche said he figured the Montana operation would be discussed at the April 16 meeting, but execs would be in no position to make a final decision by then. He said NOAA Fisheries has had internal discussion on the subject, but are still "cogitating" over what Montana wants "while trying to continue to provide what's needed for salmon recovery."

Delwiche said the agencies are aware of the need to get to a decision on the reservoir operation, but he couldn't promise anything by April 16.

Oregon council member Melinda Eden wanted the feds' proposal to include an explanation of its effect on future rates. Delwiche said his agency's rule of thumb was that a $60-million increase or decrease in BPA's costs amounted to a rate effect of $1 per MW/hr. So, a proposal that reduced summer spill costs by half ( about $38 million), would have the effect of reducing future rates by about 67 cents per MW/hr.

Later, Karier said that his state has yet to endorse any proposal, and is waiting to see what Mar. 26 brings, but he added that both he and fellow Washington member Larry Cassidy are getting more involved with his governor's staff to ensure that the federal agencies come up with a proposal that is both "good for fish and good for power." -Bill Rudolph


[2] OREGON OFFERS LITTLE SUPPORT FOR BPA'S SUMMER SPILL PROPOSAL

On the same day The Oregonian published a story about Oregon Gov. Ted Kulongoski's attempts at making his state's Democratic Party more business friendly, other state politicians were taking testimony from two of the governor's natural resource advisors who made it clear their governor wasn't ready to support the Bonneville Power Administration's proposal to evaluate summer spill, a strategy the power agency says could save the region up to $77 million a year and harm only a couple dozen ESA-listed fall chinook in the process.

On March 1, Kulongoski advisors Tom Byler and Jim Myron told members of the state House Agriculture and Natural Resource Subcommittee on Water that the governor was fully "on board" with a rigorous evaluation of summer spill, but the BPA spill proposal wasn't designed to evaluate the effects on smolt-to-adult survival or the biological effectiveness of potential programs to make up for fish lost by reducing spill, especially non-listed stocks that migrate during the summer months.

Myron pointed to the Northwest governors' position in their agreement supporting the federal BiOp and its "aggressive non-breach" strategy for operating Columbia River dams to improve ESA-listed salmon and steelhead runs.

Failure to maintain that agreement, Myron said, could re-ignite the dam breaching issue, especially if the proposed spill change looks like a "reduction."

His remarks were nearly identical to comments submitted to federal agency heads in late February by Jeff Koenings, director of the Washington Department of Fish and Wildlife.

"It's not a prudent time to make changes," Myron said, alluding to the BiOp remand now underway. He noted that Oregon agrees with federal agencies who say changes to the BiOp can be made within years, but it's a federal decision to make.

Shauna McReynolds, deputy director of the Pacific Northwest Utilities Conference Committee, said the state is "digging in its heels for the status quo."

"I'm disturbed by the state's lack of focus on this issue," McReynolds told NW Fishletter. "The governor is clearly showing an unwillingness to consider other alternatives."

Some subcommittee members were unhappy with the message from the governor's office as well. "People have had it with process," said Rep. Mike Schaufler (R). "We want decisions," adding that it was obvious the spill strategy provided little return at a great cost.

Myron said that a consensus of state agencies has criticized both the BPA proposal and the potential offsets, like the estimated benefits from increasing the pikeminnow bounty program, and reducing river fluctuations in the Hanford Reach. He wouldn't recommend the governor change his position until those agencies changed their minds.

State fish agencies from Idaho, Washington and Oregon were highly critical of the BPA analysis, a position shared by several lower Columbia tribes and the U.S. Fish and Wildlife Service.

The governor's representatives said if the feds decide to reduce spill, Oregon wants assurance that any money saved would be apportioned equitably between rate reduction and the region's fish and wildlife program. They also want some assurance from BPA that the action would not result in a rate increase in 2005, and would actually reduce power rates for Oregon taxpayers.

Ed Bowles, assistant fisheries administrator, told the subcommittee that flow and spill measures in the BiOp are the "only viable tools we have," and the "eroding" of any of those measures reduces the likelihood of success.

But his remarks didn't go over very well with some members. "I've heard the same story for a long time from this agency," said Bob Jenson, acting chair. Jenson pointed out that fisheries biologists were foreseeing an end to salmon runs a hundred years ago, long before there were any major dams.

Bowles was unfazed. He said he didn't agree with the results of the BPA analyses, calling it a misuse of NOAA Fisheries' SIMPAS passage model (which was updated and run with NOAA Fisheries help), which he said also estimated that another 3,000 fall chinook could be added to the ESA Snake River run if a spring-like spill regime was added to hydro operations in the summer months.

The passage model was also a bone of contention for tribal spokesman Paul Lumley, from the Columbia River Inter-Tribal Fish Commission. Lumley, without providing many details, said his agency used a modified form of the model to estimate that 50,000 non-listed fish would be lost from ending summer spill, more than twice what the BPA analysis suggested.

Lumley said the region was being blackmailed by BPA and browbeaten by the utilities to go along with a reduction in summer spill, since it has been suggested as a way to pay for the $15-million overage in the 2004 fish and wildlife budget.

Money issues took over from there as a parade of utility customers spoke about cost savings that could accrue from ending summer spill. PNGC spokesman Scott Corwin voiced support for the BPA proposal and reminded the subcommittee that the Northwest governors' letter didn't blindly support the BiOp, but also supported "cost-effective steps to benefit fish."

Weyerhaeuser spokesman Greg Miller said his company could reduce its power bills by nearly $3 million a year if summer spill ended.

Eastern Oregon farmer Brian Wolfe, representing the Umatilla Electric Cooperative, said irrigators in his region would see considerable savings from ending the summer spill program. He said his own $54,000 annual power bill would be reduced by $1,240 if summer spill were shut down.

The subcommittee also heard from fish advocates Nicole Cordan and Andrew Englander, representing the coalition Save Our Wild Salmon, who suggested that ending summer spill might be a violation of tribal treaties.

Sportsfishing industry spokesperson Liz Hamilton wouldn't accept the rosy federal analysis either, but expressed support for the agency and tribal numbers. She was concerned that recreational fishing in the lower Columbia might suffer, but also played the ESA card. "Requests like this remind us that the politics of extinction are alive and well in the Northwest," Hamilton said. -B. R.


[3] DEFAZIO, NINE OTHER NW HOUSE MEMBERS ENDORSE SPILL STUDY

Ten members of the Northwest congressional delegation sent a Mar. 12 letter to regional action agency heads that supports the effort to evaluate summer spill at federal dams and mitigate any changes.

The letter was circulated by Peter DeFazio (D-OR) and cited the latest analyses by federal agencies that was "consistent" with an earlier study completed by staffers at the Northwest Power and Conservation Council.

Noting the latest work shows that potential biological offsets could mitigate any harm from reduced spill, the politicians said, "We believe this analysis should be tested, beginning this summer, for a period of time (perhaps 2-3 years) sufficient to determine whether the expected cost savings and biological benefits can be achieved."

The letter was signed Oregon representatives DeFazio, Greg Walden (R), and Darlene Hooley (D), Washington House members Brian Baird (D), Rick Larsen (D), George Nethercutt (R), and Doc Hastings (R), along with Idaho members Mike Simpson (R) and Butch Otter (R), and Montana’s Dennis Rehberg (R). -B. R.


[4] LATEST NEWS FROM BIOP BATTLE FRONTS; IDAHO, IRRIGATORS JOIN FRAY

Both the state of Idaho and a coalition of the state's water users have requested to intervene in a lawsuit brought by environmentalists [American Rivers v. NMFS] who want more water from the upper Snake storage reservoirs used for helping ESA-listed fish downstream. They argue that the extra water is needed to help reach flow targets outlined in the 2000 hydro BiOp written by NOAA Fisheries.

But the lawsuit's target is another BiOp that governs operations of the upper Snake reservoirs, which are run by the Bureau of Reclamation for purposes of irrigation.

Coalition spokesman Norm Semanko says the flow augmentation strategy to aid fish has been repeatedly discredited. "The environmental community knows that flow augmentation is a failure and they know it would cripple our economy, said Semanko. "It is crystal clear that their strategy now is to use the court threat to Idaho water as a misguided attempt to leverage Idaho into supporting efforts to breach the four federal dams on the lower Snake River."

"We must never yield in the fight over the sovereignty of Idaho water," Governor Dirk Kempthorne said in a Mar. 4 press release. "This suit challenges the adequacy of our state water law to afford voluntary contributions by willing buyers and willing sellers for salmon flow augmentation. Our interests in this regard must be vigorously defended."

Meanwhile, downriver irrigation interests were still struggling over a relatively new lawsuit [Columbia Snake Irrigators v. Evans] filed against federal agencies over the 2000 hydro BiOp.

Oregon District Court Chief Judge Ancer Haggerty denied a motion Mar. 4 by Columbia-Snake irrigators to disqualify Judge James Redden from hearing their suit. Redden is leading the remand process he ordered in the original lawsuit by environmental and fish groups over the hydro BiOp [NWF v. NMFS] and on Mar. 2 denied consolidating the irrigators' action into the current remand. Irrigators had claimed that federal agencies used "junk science" when they ruled that the hydro system jeopardized many of the ESA-listed stocks in the Columbia Basin.

On Mar. 10, Columbia-Snake attorney James Buchal filed a motion for partial summary judgment in his case, claiming that the defendants have misused the Endangered Species Act to provide protection for units of salmon "much, much smaller than the ESU [Evolutionarily Significant Unit] they defined," which disregards the intent of Congress to limit the government's ability "to make listing decisions below that of a subspecies or a DPS [distinct population segment] of a species."

Buchal cited a Feb. 24 decision [Alsea Valley Alliance v. Evans] upheld by the Ninth Circuit Court, also arguing that the government's jeopardy analysis must exclude effects of future actions like increased harvests not yet authorized under the ESA's Section 7, nor can the government "find that dam operations jeopardize listed species on the basis of future State, Tribal and private actions with adverse effects on salmon yet to be considered under appropriate ESA procedures."

Buchal said he expects the government to file for a stay, so it can "continue to evade its obligation to respond to the motion and seek to continue on its present course of wasting the time and money of the region. On March 12, the feds filed to stay the irrigators' lawsuit.

Since a new BiOp is expected from the remand process sometime this summer, the Columbia-Snake suit that challenges the old one will likely be moot, forcing the irrigators to sue over the new BiOp if they want to continue the litigation. -B. R.

[5] SPRING RUN STARTS SLOW AT BONNEVILLE DAM, BUT HOPES ARE HIGH

This year's spring chinook run has begun to show up at Bonneville Dam, though daily numbers are still in the in the single digits. By this time last year, several hundred fish a day were passing the dam. The slower start is likely due to the fact that the Columbia River is several degrees colder this year.

However, some commercial gillnetting in the lower Columbia has already begun to take advantage of early migrating stocks like the Willamette springers, which show before most upper Columbia runs, including the wild ESA-listed Snake River fish that are the main reason for major harvest restrictions. Fishermen are only allowed to keep fish that have a missing adipose fin, which means they are of hatchery origin

Four 16-hr. fishing periods that ended March 12 had netted fishers nearly 2,000 chinook, which was estimated to reflect about 8 percent of the allowable impact on upriver stocks and 10 percent of the fishery's allowable impact on winter-run wild steelhead.

Harvest managers have allocated about .8 percent of the upriver spring run to the commercials, which could make for some tidy paychecks, since nearly 500,000 spring chinook are predicted this year, with the upriver run pegged at around 360,000 fish, good enough to qualify as the second best run since the dams went in.

Fishmarket
Short-lived spring bonanza begins for fishermen.

Fish buyers have been shelling out $5.50/lb for these prime specimens, which translated into $17/lb. for fillets at one Seattle fish market.

The Pacific Fishery Management Council has recently estimated the value of last year's Columbia River fisheries, figuring that personal income impacts on Oregon river communities of the non-Indian spring gillnet fishery at $753,000 and Washington's at $147,000.

Treaty Indian fishers last spring had $9,000 in estimated income impacts to Oregon river communities and $359,000 worth of impacts to Washington towns.

Fall fishing in 2003 boosted the total impacts from both Indian and non-Indian fisheries to $8.2 million; $1.9 million and $6.3 million, respectively.

Actual 2003 ex-vessel value for fish harvested in the Columbia River was only $2.8 million, according to the council's report, with the non-Indian catch accounting for about $2.4 million of the total. The analysis didn't count "over-the bank" tribal fish sales, which have amounted to between one-third and one-half of tribal ticketed sales in recent years.

Overall, the value of the 2003 commercial catch was 11 percent higher than 2002's, but still down significantly from earlier years, and 80 percent below the average harvest value from 1987 to 1998. -B. R.


[6] BUOYED BY NINERS' RULING, FARMERS, BUILDERS CONTEST STEELHEAD LISTINGS

The Pacific Legal Foundation, fresh from a victory in the Ninth Circuit Court that effectively tossed out the ESA listing for Oregon coastal coho, is now suing the federal government over its West Coast ESA listings for steelhead.

PLF attorney Russell Brooks said the feds can't find any genetic differences between wild and hatchery steelhead or the resident component, rainbow trout, but they have listed only wild steelhead for ESA protection. He says that's wrong based on the recent Ninth Circuit decision that ruled NOAA Fisheries illegally listed only the wild component of the coastal coho for protection, when they should have included the genetically identical hatchery component as well.

"The plaintiffs in this case are over 100,000 farmers, ranchers, community leaders, and citizens, most of whom provide food and agricultural products for the entire nation," said Brooks. "When the livelihoods of so many people and a critical sector of the American economy hang in the balance, the government should be working overtime to follow the law, not finding ways to subvert it."

Plaintiffs include the Washington State Grange, Oregon State Grange, Washington Farm Bureau, Alsea Valley Alliance, Okanogan County, Kittitas County, and the Building Industry Association of Washington. -B. R.


[7] FULL NINTH CIRCUIT PANEL TO HEAR $5.7 BILLION CUSHMAN CLAIM

In a relatively rare development, the 9th U.S. Circuit Court of Appeals has agreed to have a full panel of its judges hear the Skokomish Tribe's appeal of a district court ruling that dismissed its $5.7 billion claim for damages arising from the construction and operation of Tacoma Power's 131 MW Cushman Dam. A three-judge Ninth Circuit panel upheld the dismissal on June 3, but the tribe moved for rehearing en banc, or before a full panel of judges. Last week, the court said a majority of its active judges voted to approve the request. Oral arguments are set for March 23.

Under court rules, en banc hearings are granted only to maintain uniformity of the court's decisions or when the proceeding "involves a question of exceptional importance. It means the court's chief judge and 10 other judges will be impaneled to hear the case. Of the 1,039 petitions for en banc hearings filed in the Ninth in 2002, only 17 were granted.

"It's very significant," said Mason Morisset, attorney for the tribe. "For a majority of the sitting judges to vote to have the case heard means they must be concerned about what was said" in the panel decision.

According to the court, there are two issues. One is whether the tribe's treaty claims about the construction and operation of Cushman constituted a "collateral attack" on the project's license. The other issue is whether the tribe should be able to sue for damages for trespass caused by the construction and operation of the project. Tacoma's attorneys hailed the panel's July ruling, saying it would preserve from collateral attack Federal Energy Regulatory Commission's authority to address all public interests when issuing hydroelectric licenses.

Steve Klein, Tacoma superintendent, said the court may simply have decided that there are "precedent setting qualities" to the case, and so more judges wanted to participate. Mike Swiger, an attorney representing Tacoma in the case, agreed that a vote for an en banc hearing "does not mean they disagree" with the result of the panel. He said there is a novel issue involved--whether treaty fishing rights create a tort liability for a FERC licensee--and this may have simply "piqued the interest of the full court." Obviously we wish the issue were settled, but it's certainly not terribly surprising they took the case."

On June 4, the day after the tort claim decision, a separate three-judge panel of the Ninth Circuit ruled that Tacoma illegally condemned land in 1921 owned by the tribe for a transmission right-of-way. Although compensation was paid, the condemnation was sought through state court, not federal. Klein said the city lost the case, even though the appropriate court for seeking the condemnation was not resolved until 1934.

After pending for 24 years, FERC approved a license for Cushman in 1998 with conditions--including a prescribed flow for fish of 240 cubic feet per second--that FERC acknowledged would cause Tacoma to lose $2.5 million per year. Tacoma got a stay of the license and appealed the conditions, saying the license should be treated as federal takings, subject to compensation. The city voluntarily doubled the flow it provides for fish to 60 cfs during the appeal process. But a recent FERC administrative law judge's recommendation, if approved, could lift the stay and force the utility to increase the flow to as much as 240 cfs while the appeal is pending. -Ben Tansey


[8] PACIFICORP FILES KLAMATH RIVER HYDRO PROJECT RELICENSE

After four and a half years, hundreds of meetings and $10 million worth of studies, PacifiCorp has officially filed its application to relicense its 151-MW Klamath River Hydroelectric Project.

The project is made up of six hydroelectric dams and one storage dam. It spans a 45-mile stretch of the Klamath River, which is home to two species of endangered fish: coho salmon in the lower basin and suckerfish in the upper basin.

The filing begins a yearlong review process that may include comments from local tribes, environmentalists, irrigators and ranchers from the Klamath Basin.

Last summer, several California agencies and environmental groups, asked PacifiCorp to consider decommissioning or removing one or all of the dams on the Klamath.

PacifiCorp's 7,000-page application recommends decommissioning the East Side and West Side powerhouses, which together produce 3.8 MW. The application does not include Keno Dam, which is the only one in the project that does not generate electricity.

But the application also does not include provisions for any new fish passages on the river, which may draw the wrath of local tribes and environmentalists keen on restoring fish runs to the upper basin of the river.

Jon Coney, spokesman for PacifiCorp, told NW Fishletter that installing fish ladders and screens across the Klamath Hydroelectric system would cost the utility roughly $100 million.

"The modeling data shows that the benefits of restoring habitat are questionable," he said.

Coney said that even with expensive fish ladders and screens, salmon could not establish a sustainable population in the upper basin.

Since the construction of the first dam nearly 80 years ago, salmon, steelhead and Pacific Lamprey have been unable to reach nearly 65 percent of the upper basin. Klamath basin salmon runs were once considered the third strongest run on the West coast.

Last year, the California Energy Commission released a 16-page study that advocated the decommissioning or removal of some or all of the dams. The study concluded that PacifiCorp could make up the loss of hydroelectric power by contracting for power from two thermal plants proposed in Southern Oregon--the 484 MW Klamath Cogeneration Station in Klamath Falls, Ore. or the 1,050 MW COB Energy Facility also planned for Klamath County, Ore.

The CEC study examined the removal of Iron Gate, COPCO 1 and 2, and the J.C. Boyle facility in Oregon. In addition to getting FERC's approval, the hydroelectric project would also need to secure water quality permits from the states of Washington and Oregon.

In the relicense application, PacifiCorp proposed improving water quality by removing the east and west powerhouses. The company announced late last year that it would abandon the powerhouses because of maintenance costs.

The company will also implement new minimum instream flows and ramping rates in all the projects reaches to protect flow-dependent resources and enhance water quality.

PacifiCorp also proposed several changes to operations at the J.C. Boyle Dam to enhance fish habitat, including a minimum 100 cubic feet per second flow release at all times and maintaining a high water quality in the bypass reach. The company will also add a surface collection system for Boyle reservoir to exclude fish from power intakes and facilitate downstream fish passage.

PacifiCorp did not study removing the dams as part of the application process. "Our responsibility is to make sure we have done a good job of accurately describing the project and how it relates to the natural environment surrounding it," Toby Freeman, hydro relicensing manager for PacifiCorp, said in October.

The Klamath Hydroelectric Project was issued an operating license in 1956. The current license expires in 2007. The application process is expected to take two years. -Steve Ernst

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