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NWF.182/Jul.20.2004
[1] Oregon Joins Spill Suit, Decision Due By Month's End
[2] Washington Endorses Spill Proposal
[3] Spill Proposal Trimmed To Reflect New Analysis
[4] Feds Nix Montana Flow Changes
[5] Columbia River Summer Chinook, Sockeye Run Near 40-Year High
[6] Power Council Wades Into Swamp Of Conflicting Hatchery Mandates
[7] Ambitious Salmon Restoration Planned Behind Deschutes Dams
[8] Tacoma Says 240 Cfs Order Is 'Punishment' By FERC

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[1] OREGON JOINS SPILL SUIT, DECISION DUE BY MONTH'S END

Gov. Ted Kulongoski announced last Friday that Oregon would join environmental and fishing groups to stop the reduced summer spill regime at Columbia River dams. It's promising to be a major showdown between the bean counters and the salmon counters over more cost-effective hydro operations that call for ending spill in August at two mainstem dams and curtailing it at two other projects (See story 3).

Washington and Montana have already voiced support for the reduced proposal, with Idaho informally backing it as well.

In papers filed in an attempt to stop the new spill regime, Earthjustice attorneys said "juvenile migrating salmon are not fungible widgets that can be exchanged for each other without consequence." They said the hydro BiOp's core principles indicate that juvenile salmon throughout the migration must be protected to ensure genetic and life history diversity. They also say that the survival rate of juvenile fall chinook is "considerably lower" than a few years ago when the BiOp was issued.

Federal agencies who want to reduce spill by about 40 percent estimated the new plan could kill up to 1,000 ESA-listed Snake River fall chinook smolts out of a run size of about one million juvenile fish. BPA has bought $4 million in water from Idaho Power to make up for the lost smolts, but critics say the action shouldn't be used as an "offset" because the water was likely to be released in July, anyway, Oregon's amicus brief claims that the release was already "contemplated and counted" in the hydro BiOp, so it can't be "double-counted."

Kulongoski echoed other critics of the reduced spill proposal, alleging it does not guarantee a reduction in power rates, nor fully mitigate for the loss of the additional fish. The proposal would also have negative impacts on the sports fishing industry in his state, he said.

Kulongoski said that the federal plan didn't help resolve long-term issues. "There's a better solution than simply shutting down the spillways," he said, "and that is to install newer, more effective spillway systems."

Utilities were not happy with Kulongoski's position. "It's surprising and disappointing," said PNGC Power vice president Scott Corwin. "Oregon's analysis runs counter to the intense analyses by the federal agencies that shows the proposal's offsets to more than cover any fish losses."

The July 9 filing by environmental and fishing groups seeks to amend the original 2001 complaint (NWF v. NMFS) to include the Corps of Engineers as an additional defendant. The earlier litigation led to the hydro BiOp remand process, now underway.

In a press release that announced the action, American Rivers said cutting spill "ignores the scientific advice of state, tribal and federal biologists, and would fail to offer significant relief to Northwest ratepayers, who would save only pennies per month on their electric bills."

But BPA says the reduced spill action could save the region up to $28 million after paying $13 million to offset both non-listed and listed fish losses.

The litigating group said with increasing salmon runs, "now is the time to be doing more, not less, to recover Columbia and Snake River salmon. Doing the bare minimum to merely avoid extinction is not acceptable." They said the region should not accept a "false trade off" between affordable energy and salmon recovery.

The amended complaint relies heavily on comments made in February by state and tribal salmon managers (along with USFWS) that took issue with the action agencies' original analyses, including the SIMPAS passage model that was used to estimate changes in juvenile survival.

In response to these and other comments, the action agencies considerably modified both their analyses and their spill proposal, and NOAA Fisheries approved an offset to the few ESA-listed fall chinook expected to be lost by the reduced spill regime. In the end, BPA was required to spend $4 million to improve flows through the reservoir above Lower Granite Dam before the feds signed off.

The amended complaint says that state, tribal and federal co-managers "unanimously criticized" this flow action as well, alleging the water was likely to have been available anyway. The complaint also argues that the agencies' estimate of impacts to fall chinook is too inaccurate to determine whether "this, or any other offset will adequately mitigate the harm to salmon and steelhead from spill reduction."

The action agencies have already responded to many of these comments in their final spill proposal, also noting that Idaho Power's base power plan did not call for releasing any water from Brownlee Reservoir in July.

The added complaint also claims the Corps of Engineers' decision to add the Brownlee water is illegal because "it continues to rely on the invalid 2000 FCRPS BiOp as the basis for the Corps' compliance with the ESA."

The plaintiffs argue that the Corps has not made a valid consultation regarding operation of the hydro system since the BiOp was declared illegal, therefore it is violating the ESA. They called on the judge to rule the Corps' actions "arbitrary and capricious," and enjoin the Corps to withdraw its statement of decision and NMFS to withdraw its July 1 findings letter that approved the Brownlee water deal that paved the way for acceptance of the spill proposal.

The effects of the reduced spill plan on non-listed stocks are outside the legal framework of the court's BiOp-centric focus, but several lower Columbia tribes have suggested over the past two months that they would sue in another federal court because the proposed action would adversely affect their harvest opportunities spelled out in the ongoing U.S. v. Oregon process.

To accommodate that possibility, BiOp Judge James Redden offered a highly unusual solution. In an e-mail communication with affected parties, he said "that if the Tribes file in U.S. v. Oregon for injunctive relief regarding the August spill, Judge King [the federal judge who oversees the confidential U.S. v. Oregon process] can join me on the bench at the July 28th hearing because the information presented at that hearing will be relevant to any motion for injunctive relief filed in U.S. v. Oregon. In addition, because I am statutorily prohibited from participating in U.S. v. Oregon (having formerly represented the defendant in that case), I have discussed with Judge King an arrangement whereby the last issue to be argued at the hearing would be Tribe treaty rights. I would leave the bench before those arguments because they are not involved in this case. We believe this procedure would be both appropriate and legal."

But the tribes may not go this route, which might somehow jeopardize their treaty rights, sources said. Last year, low prices for fall chinook saw a much reduced fisheries effort by lower Columbia tribes, which kept them from catching their total allotment of fall chinook before reaching their limit of ESA-listed steelhead, which ended the fishery.

Tribes may file amicus briefs instead, standing behind environmental and fishing groups in their last-ditch effort to stop the new spill regime scheduled to begin Aug. 1.

Charles Hudson, spokesman for the Columbia River Inter-Tribal Fish Commission, told Northwest Fishletter on July 16 that the tribes would file papers that day in the BiOp case on the summer spill issue.

"Tribal leaders are in discussions with their legal counsels about other options including bringing an action in U.S. v. Oregon," Hudson said by e-mail, "but I am not aware of any decisions to do that at this time. As you know, the spill proposal has bumped up hard against U.S. v. Oregon already with the Lyons Ferry yearling/sub-yearling piece. That 'offset' was removed after U.S. v. Oregon parties (Washington) met the requests of the Nez Perce Tribe to abide by the 2003 agreement."

Plaintiffs filed a motion for a temporary injunction July 16. Judge Redden will hear the issue in his court July 28 and has promised a decision by July 30. -Bill Rudolph


[2] WASHINGTON ENDORSES SPILL PROPOSAL

Washington Gov. Gary Locke sent word in early July that his state officially endorsed the spill proposal outlined by federal executives at a June 14 meeting in Portland.

"In the end, I believe your proposal, as drafted, will avoid a net impact on fish," said Locke's letter to Corps of Engineers Brig. Gen. William Grisoli and Steve Wright, administrator of the Bonneville Power Administration.

Locke said he particularly appreciated efforts made to address concerns raised by his fish and wildlife department, and that they would "continue to work closely with them to resolve any remaining questions."

WDFW comments on spill proposals floated since March have stressed potential impacts to non-listed populations of fall chinook. But the state fish agency still has questions about the spill evaluation scheduled to take place this summer at Bonneville Dam.

In a June 22 request delivered to the Technical Management Team, the forum for managing real-time hydro operations, WDFW, ODFW, USFWS, and several tribes called for continuing BiOp spill all summer at the lower Columbia dams. Noting the "extent of technical concerns" by their staffs, the agencies said they did not support the spill study. In addition, "the reduction of spill at Bonneville Dam for the conduct of the study will impose additional mortality on the juvenile fish migration," they said.

WDFW's Bill Tweit said his agency supported the offsets for ESA-listed fish, namely the $4 million worth of extra water that BPA has contracted with Idaho Power for release in July from Brownlee Reservoir, but hesitated to voice full support for the actions to improve the numbers of unlisted stocks. "The devil's in the details," Tweit said, noting that the latest offsets do "have a lot more biological meaning" than the first proposal.

Tweit also said discussions would continue about the possibility of more selective harvest methods that BPA had begun earlier in the process.

After being approached by an Astoria-based commercial fisherman's group, BPA staffers worked out a proposal that would have swapped about half of the gillnetters' fall catch (about 1.5 percent of the upriver fall run) for a higher harvest in the spring. BPA analyses said such a shift would make up for all non-listed losses from reduced summer spill.

Using selective methods that will be developed with BPA's help, such as floating fish wheels, the harvesters would likely be able to keep more hatchery spring chinook, mainly fish headed for the Willamette River, while releasing more wild ones listed under the ESA.

But an outcry from sports fishing interests caused Oregon and Washington agencies to shy away from the proposal, even though it would not mean an increase in commercial gillnetters spring quotas, or a reduction in harvest for sports fisherman. The proposal would give them more of a chance to harvest their rightful share before they reached their limit of impacts to listed upriver Columbia chinook.

At this point, WDFW's Tweit said his agency supports a one-year study to investigate the feasibility of benefits, but says BPA had "misstated" the state's position regarding the potential reduction in fall impacts for more spring benefits. He said the state does not support any fall-spring benefit swap, but will talk about how gillnetters might be more selective in their fall fishery.

That may be a tough sell since it would mean convincing the gillnetters to catch more low-value fall tules and fewer upriver brights bound for the Hanford Reach.

But talks will continue for now. As part of the latest spill proposal, BPA says it will facilitate discussions with all stakeholders in the harvest area with the goal of having a full-fledged harvest offset program in place by 2008.

So far as the states are concerned, Locke joined Montana's Gov. Judy Martz as supporters of the spill proposal. Oregon's Gov. Ted. Kulongoski has made general statements supporting the overall cost-effective effort, but had not signed on to the final proposal. Kulongoski spokesman Tom Byler told NW Fishletter that they were "waiting for the process to unfold," and wouldn't make a policy statement until the record of decision came out (See story 1).

A group of fifty-four municipalities, public and private utilities, businesses and union groups sent a letter on June 28 to Kulongoski urging that he clearly endorse the spill proposal. "Without your support," said the letter, "this region will continue to waste millions of Oregon taxpayer dollars for little benefit."

Corps Gives Stamp of Approval

The Corps of Engineers issued their "statement of decision" on July 6 which modified summer spill operations for 2004 from the recommendations of the 2000 BiOp. The 2000 mandate called for spill at four dams through July and August to help juvenile fall chinook down Columbia and Snake rivers, and was estimated to cost about $77 million annually.

But only two days after the new spill proposal was approved by the Corps of Engineers, Earthjustice attorney Todd True was speaking to BiOp Judge James Redden to discuss the possibility of litigation over the spill issue. At that July 8 meeting between Biop remand parties, the Justice Department suggested that the plaintiffs' original complaint in the BiOp lawsuit be amended to include the spill issue.

Redden agreed to issue a minute order calling for plaintiffs to amend their complaint by July 9 and to follow with a preliminary injunction motion by July 16 to attempt to head off the changes to the spill regime. Defendants were given until July 22 to file their response, and plaintiffs' replies are due by July 26 with a court hearing on the motion scheduled for July 28. A decision is expected by July 30, only a day before spill is supposed to end for the rest of the summer at two mainstem dams.

At that time, there was no public word from tribes about the possibility of suing over the spill issue in Oregon District Court, where a judge is supervising the ongoing (and confidential) U.S. v. Oregon process to develop a new harvest and fish production agreement between states, the feds and lower Columbia tribes.

In his agency's official statement, Corps of Engineers Brig. General William Grisoli maintained that he had given "serious consideration" to his treaty and trust responsibilities in making the decision.

The latest proposal, heavily amended from a March 30 version, called for ending spill at Ice Harbor and John Day dams in late August, when most fish have passed, and for no August spill at all at Bonneville and The Dalles dams.

After the Bonneville Power Administration agreed to pay Idaho Power $4 million for another 100 kaf of flow augmentation in July from Brownlee Reservoir, NOAA Fisheries said the change wouldn't adversely affect ESA-listed fall chinook from the Snake River.

To make up for other fish lost from reduced spill, other BPA-funded actions aimed at boosting the numbers of non-listed stocks have also been approved by Montana, Washington state, more informally by Idaho, and now, the Corps of Engineers.

Though some state agencies and tribes were concerned that ending spill at some dams would have adverse affects on adult fish that fell back at dams, the Corps concluded that ending spill in July and August wouldn't affect overall survival of migrating fall chinook and steelhead.

The Corps also said offsets were estimated to "exceed the aggregated adverse impacts" to non-listed stocks.

"This action is a winner for the economy and environment of the Northwest by implementing an effective and efficient means to help salmon," said Steve Wright, BPA administrator. The change is expected to save ratepayers $18 million to $28 million, after spending about $13 million on offsets.

Speaking for a coalition of utilities and other BPA customers, Shauna McReynolds, director of the Pacific Northwest Utilities Conference Committee, called the spill reduction a step in the right direction. "More fish for less money: what's not to like?" she said in a July 6 press release.

But environmental groups disagreed. "This short-sighted decision will likely kill thousands of salmon and steelhead and will further undermine the Bush administration's salmon plan, which has already been found inadequate by a federal court and has not been fully funded or implemented," said Rob Masonis, regional director of American Rivers. -B. R.


[3] SPILL PROPOSAL TRIMMED TO REFLECT NEW ANALYSIS

The action agencies' proposal for a one-year reduction in summer spill OK'd by NOAA Fisheries has been trimmed a bit from the version announced in early June but is still estimated to save ratepayers $18 million to $28 million, after paying for $13 million worth of actions to offset fish losses.

"We believe that the proposal provides equal or better benefits for listed salmon as in the 2000 BiOp," said a letter sent June 23 to regional NOAA Fisheries administrator Bob Lohn from Bonneville Power Administration head Steve Wright and Corps of Engineers' Brig. Gen. William Grisoli. "We also believe the proposal provides equal benefits to non-listed salmon as occur under the 2000 BiOp summer spill regime."

The agency heads requested that NOAA analyze the proposed action based on hydro operations alone, "along with an assessment of habitat and hatchery potential for ESUs [Evolutionarily Significant Units] where a gap is identified."

The action agencies said they would develop a supplemental proposal "as necessary" for targeted habitat and hatchery operations as offsite mitigation for the hydro operations, which could also include further changes to the proposed hydro operation.

The operations have been scaled back a few more days from the June proposal, which had called for no August spill at Bonneville and The Dalles dams, and no spill for the last 10 days of August at Ice Harbor and John Day.

The latest offering trims the no-spill drill at Ice and John Day by four days, but uses the same impact analysis as the June version, which found the reduced spill plan could kill up to 1,000 listed smolts out of a run size of about one million juvenile fish. The analysis pegged losses of non-listed fish up to 737,000 juveniles out of a 50-million fish migration.

The original March 30 proposal called for no spill at any of the dams in August, with tests or BiOp-level spill during July.

The changes are partly due to a revised NOAA Fisheries analysis that estimated more adverse impacts to ESA-listed fall chinook from the Snake River. As a consequence, BPA has forged an agreement with Idaho Power to pay for another 100 kaf of water from Brownlee Reservoir to augment flows in July.

In early June, BPA paid Idaho Power $1 million for the option to use the water, and exercised that right on June 23 by paying the private utility another $3 million.

In addition to funding offsets for reduced Hanford stranding and a beefed-up bounty for pikeminnow to improve numbers of non-listed fish, the final proposal calls for adding $10 million to the basin's fish and wildlife program over the next three years, contingent on spill reductions in 2005 and 2006.

BPA said it would also spend $2 million to increase production at specific hatcheries and establish a $2 million fund for habitat improvement for spawning fish affected by the spill reduction.

Though the spill proposal itself only calls for a one-year reduction, it includes discussion of possible harvest reductions and other potential offsets in the next two years. Between now and next January, BPA said it will facilitate meetings among harvest stakeholders to discuss and gauge support for more selective fishing methods in the non-tribal fisheries. With enough regional support, the agency said it would fund a three-year study of pilot fisheries.

The action agencies also embraced recommendations by Oregon and Washington fish managers to speed up construction of removable spillway weirs and other improvements for fish passage at dams.

The latest politician to weigh in on the issue was Rep. Jim McDermott (D-Wash.), who said he thought the spill proposal risked too much "for too small of a reward--the few cents it will save the average residential customer." In a June 9 letter to BPA, he asked the agency to withdraw the proposal, at least until NOAA Fisheries releases their revised BiOp (expected by Nov. 30).

In late March, Rep. Peter De Fazio (D-Ore.) and nine Northwest politicians from both parties voiced support for the reduced spill effort and called for testing this year. Rep. David Wu (D) and Sen. Gordon Smith (R) of Oregon also supported testing the proposal in 2004. -B. R.


[4] FEDS NIX MONTANA FLOW CHANGES

John Hines, Montana member of the Northwest Power and Conservation Council, told NW Fishletter July 16 he had received unofficial word that federal agencies had turned down Montana's request to improve conditions for resident fish by reducing and flattening flows from two of the state's largest federal reservoirs.

Montana had pushed the request hard in recent river operations forums, noting that its proposal was one of the Council's mainstem recommendations. However, consensus could not be reached, and NOAA Fisheries ultimately turned down the request last Friday, four days after federal agency execs met to discuss the issue.

Hines said federal agencies and the state of Oregon have made it extremely difficult to "effectuate" any changes that attempt to balance in-river operations between resident fish needs and salmon populations. The intent of Montana's request, Hines said, was "to tweak operations to the benefit of resident fish" such as Montana's bull trout and listed sturgeon.

"We are continually being asked to disprove a theory," Hines said, "namely, that all changes in river flow have a positive benefit on salmon. But scientists are telling us that this theory cannot be adequately tested within our lifetimes. It makes it merely a red herring for other people's agendas."

State and tribal fish agencies did not like Montana's request because it would reduce summer flows in the lower Columbia River.

But Hines said the potential change would have only reduced flows by 3 kcfs, when the flow target at McNary Dam is 180 kcfs this time of year. He said USGS scientists say they can only measure river flows to within plus or minus five percent, or 9 kcfs, when flows are at the summer target level.

Hines said Corps of Engineers representative Witt Anderson told the Council last week that more than 3 kcfs leaks under the spill gates at Bonneville Dam.

However, Hines said the state is pleased that the feds have OK'd flat outflows at Libby and Hungry Horse for the rest of this summer's operation, even though outflows are higher than what Montana wanted. The state expects the region to support experiments with the reservoir volumes next year and in the future, Hines said.

Montana power council members found support from Idaho and Washington members in their bid to evaluate the change in flows. The three states voted at last week's Council meeting to support Montana's request and sent a letter to NOAA Fisheries expressing their support for stable outflows from Montana reservoirs through September. The letter noted that the proposal was not inconsistent with the earlier Council recommendations, a question that had come up during discussion earlier in the week.

But Oregon's two Power Council members, Melinda Eden and Gene Derfler, voted against sending the letter. It was reported that Derfler had earlier voiced support for it, but was ordered by his governor to vote against it.

In a July 19 response, NOAA Fisheries regional administrator Bob Lohn said the monitoring system now in place wouldn't likely be able to detect any differences in lower Columbia fish survival from the small changes in flow proposed in the experiment. He said it may be impossible to even design a future research program that provided statistically significant measurements.

But Lohn said it would still be useful for Montana to conduct baseline studies under this year's conditions, and to that end, his agency supported maintaining a steady outflow at the reservoirs until the end of the season.

Montana council member Ed Bartlett said it was a frustrating start, but was encouraged that the feds' response seemed to indicate that they recognize the Council recommendations should be implemented. He also noted that after traveling in the region last week, the Montana request had the full support of both northern Idaho and southern BC interests. -B. R.


[5] COLUMBIA RIVER SUMMER CHINOOK, SOCKEYE RUN NEAR 40-YEAR HIGH

Tribal fish managers are calling this summer's fish run on the Columbia one of the top five since 1957. The latest estimates for the summer chinook and sockeye numbers stand at 96,400 (103,000 pre-season), and 125,000 (80,000 pre-season), respectively.

By July 12, about 122,000 sockeye had passed Bonneville Dam, the largest count since 1987. Most are headed for the upper Columbia, but 154 ESA-listed Snake River sockeye are estimated to return to Idaho from the large number of juveniles released two years ago. By last week, about 105 sockeye had been counted at Lower Granite Dam, the halfway point on their nearly 900-mile migration back to Idaho's Redfish Lake. That's the second highest number since 1983.

Tribal fishers announced July 13 they had caught about 5,000 summer chinook and 2,800 sockeye, and proposed several more days of gillnetting to nab more sockeye. With the run declining fast, the Columbia River Inter-Tribal Fish Commission estimated that only a few hundred more sockeye would be caught.

The tribes are allotted 5 percent of the summer chinook run, but PIT-tag analysis shows that it's likely they caught more than their share of the listed Snake River component of that run, which generally appears earlier than the upper Columbia fish.

The allowable non-Indian impact to the summer chinook run is only 1 percent, split about 50-50 between sporties and commercial fishermen. An early July analysis estimated that the non-Indian takes were about 800 chinook short of the allowable level.

The summer runs are counted at Bonneville Dam throughout June and July. As a rule, these runs are much smaller than spring or fall runs on the river, but they have benefited from improved ocean conditions, as well as from other stocks over the past few years. -B. R.


[6] POWER COUNCIL WADES INTO SWAMP OF CONFLICTING HATCHERY MANDATES

The Northwest Power and Conservation Council has revved up regional interest in the ongoing debate over fish hatcheries by releasing a draft issue paper on artificial production for public comment. The paper is one product of a 1997 congressional mandate to review federal hatchery programs in the Columbia Basin and to develop a set of coordinated policies to guide their future operation.

At last week's meeting in Spokane, Council staffer Bruce Suzumoto said the NWPCC is being asked to facilitate a regional discussion to identify basin wide goals, and to reduce inconsistencies for hatchery programs.

Noting that some hatcheries produce fish for harvest primarily out of the basin, some focus on increasing local harvest, and some use fish for rebuilding wild runs, Suzumoto said the region needs clearly articulated goals. "That goes for all the H's," Suzumoto said.

It's also been difficult to measure how successful many of these programs are, since less than one-third of them have the pertinent information needed to assess this, according to Council member Tom Karier from Washington state. He was enthusiastic about the new effort to untangle the conflicting mandates developed over the years by ever-changing fish policies.

Several of the paper's draft recommendations include: establish periodic program reviews; develop a set of performance standards to measure success; establish an expert panel to oversee the reviews, offer advice, contribute to reports; help identify research needs; and build an Internet-based data system to provide information for reviews and subbasin reports. -B. R.


[7] AMBITIOUS SALMON RESTORATION PLANNED BEHIND DESCHUTES DAMS

An ambitious plan to restore salmon behind dams on Oregon's Deschutes River was announced last week by project co-owners Portland General Electric and the Confederated Tribes of the Warm Springs. They have reached a settlement with 20 other agencies, municipalities and conservation groups to begin work to re-open 226 miles of streams above the 465 MW Pelton Round Butte project to salmon and steelhead for the first time since the dams were completed 36 years ago.

The announcement brought Interior Secretary Gale Norton out West to applaud the effort. She said the settlement demonstrated how innovative water management and hydroelectric operations could protect tribal resources, enhance the environment and aid in the recovery of threatened species. "With sound science, cutting-edge technology and creative solutions," Norton said, "we can have both healthy rivers and thriving communities."

Proposed fish collection tower in Lake Billy Chinook.
(Courtesy PGE)

The agreement is part of the FERC re-licensing process for the project, which is expected to be completed by next year and would be valid for the next 50 years. But it won't come cheap. PGE and the Tribes expect to spend more than $135 million over the next 50 years on the project.

Earlier attempts at fish passage that included downstream pipelines, upstream fish ladders and a gondola that helped adult salmon over 440-foot Round Butte Dam failed when it was discovered that currents in the reservoir behind Round Butte kept fish from migrating towards the dam.

So, engineers designed a $60 million, 270-foot tower to be built in the reservoir that will collect migrating fish and re-direct currents.

The tower, which looks something like a gigantic version of the float mechanism in your average residential toilet, will be capped by a 103-foot wide disc that will collect the fish through a wedge-shaped opening in the top. It's been designed to draw enough water to pull most of the surface currents downstream.

Migrating fish will be collected by a surface screen on the wedge, piped into a tank, then transported downstream of the project, where they will be released to migrate freely to the ocean. Project biologists estimate that 96 percent of the juveniles collected should survive to below the project.

The tower, which is also designed to draw warm water off the surface of the reservoir, yet draw water from the depths at other times of the year to cool waters downstream, is expected to be operating by the spring of 2008, a year after spring chinook and summer steelhead will be re-introduced into Lake Billy Chinook.

PGE spokesman Mark Fryburg said computer modeling predicts the tower will work. "Otherwise, we wouldn't be spending this much money." He said estimates of future returns are sketchy, but biologists expect numbers "in the thousands."

Along with the fish restoration plan, the new agreement calls for adding more flows below the project for spawning fall chinook, and spending $21 million to restore habitat, including 12 miles along Trout Creek, the Deschutes' main tributary for summer steelhead, along with re-connecting corridors for bull trout populations and continuing to fund a hatchery whose goal is to develop self-sustaining and harvestable fish populations.

"Many generations will benefit from this agreement," said Warms Spring tribal chairman Ron Suppah. "The next 50 years under this new license will create a blueprint for wise natural resources management that is so important to our Indian people and financial resources that are vital to the tribal organization. Adding electric power generation has diversified our economic base and supported programs ranging from public safety to health and education." -B. R.


[8] TACOMA SAYS 240 CFS ORDER IS 'PUNISHMENT' BY FERC

The Federal Energy Regulatory Commission last month lifted its stay on a costly flow regime requirement that Tacoma Power has repeatedly said will amount to the "de facto decommissioning" of its 131 MW Cushman dam. The commission also denied Tacoma's motion to reconsider the Cushman license, which has been in legal limbo since it was issued in 1998.

Parties on both sides said they anticipate motions for rehearing and ultimately federal court appeals. In effect, the six-year old challenge to the license is beginning anew, they said. The ruling, which came as part of a license amendment, requires Tacoma to increase minimum flows at Cushman to 240 cfs as compared to the current rate of 60 cfs, which is already above the minimum in the old license.

"We're terribly disappointed," said an angry Steve Klein, superintendent of Tacoma Power. "This commission is willing to let the project go down the drain. And I continue to wonder how that can be a good energy policy." He complained that the commission called its decision "reasonable" because Tacoma can pass the added costs of the new license conditions on to its retail customers.

The current commissioners are mostly former state utility commissioners who are used to authorizing IOUs to pass on costs and get a rate of return, he said. "Don't complain, Tacoma Power; you don't suffer," he mocked. "You don't lose those millions; you just pass that on to your ratepayers. But our ratepayers are our owners."

FERC is trying to "usher in the brave new world of free markets, SMD and RTOs," Klein continued, but it did nothing to ensure just and reasonable rates as "the western US burned down in flames." Tacoma has been among a handful of Northwest utilities doggedly pursuing refund claims in the courts and at FERC.

But FERC decided it was "too complicated" to deal with refunds, Klein said. "So take a hydro project, destroy it. Don't do the right thing by denying relicense" and thereby forcing the government to take it. "They want to punish Tacoma," he said, "first by denying us a rightful refund and now by taking our project and forcing us to have to suffer the consequences of their failed public policy."

But the commission said it carefully considered the arguments Tacoma made in a last desperate motion to get the license reconsidered. FERC said there was nothing new in the filing and that it was satisfied it had not overlooked or misunderstood anything.

"Although we are reluctant to issue an order that may prompt Tacoma to reject a new license for the Cushman Project, we are convinced that the new license terms are not only reasonable but necessary to serve the public interest and meet the requirements of the FPA," according to the order. "There is substantial evidence in the record to suggest that Tacoma could pass the costs of the new license on to its ratepayers without a substantial impact on rates."

"It's a new day here," said Mason Morisset, attorney for the Skokomish Tribe, which for years has assiduously fought Tacoma over the project and is still awaiting the outcome of a multi-billion dollar civil claim. He called the order "very big. It's a major recognition [by FERC] that, particularly these older projects, cannot simply be relicensed as business as usual. "The key point that the commission made is that Tacoma has to realize that it's going to cost a lot more to run a facility like this than it did before. To keep complaining that it's not economic is not enough to modify the license. It has to be done in compliance with current law."

The 46-page order includes a dissent from commissioner Joseph Kelliher, who said the decision breaks FERC precedent. "In the past, the commission has consistently granted stays of costly license requirements pending judicial review." He quoted a 1999 ruling in the Cushman docket in which FERC said "the public interest would not be served by requiring Tacoma to bare substantial, largely unrecoverable costs" before having had a meaningful opportunity for judicial review, which Kelliher insisted Tacoma has not had. "Nothing has changed since then but the passage of time," he wrote.

In response to a request from Tacoma, FERC in 1999 placed a stay on the 240 cfs requirement it adopted when it approved the new subsequent license for Cushman in 1998, 24 years after Tacoma first applied for it. Tacoma sought the stay pending its petition for judicial review. Shortly thereafter, two new species of salmon impacted by the project were listed under the Endangered Species Act. The federal court remanded the matter back to FERC to begin ESA consultations on the new listings.

Last year, with support from American Rivers and federal and state resource agencies, the Skokomish Tribe filed to lift the stay. The stay was put in abeyance pending a special proceeding before an administrative law judge to set interim license conditions. The two sides famously could not agree even on a stipulation of facts, but the ALJ ultimately recommended late last year interim conditions that included a 240 cfs regime. Then the biological opinions on the new listings were filed.

"With the final biological opinions in hand, we are now in a position to issue our decision in response to the court's remand," FERC said in its June 21 order. FERC rehearsed the history of the 80-year old project, then concluded, "Tacoma must be willing to accept the change from a complete lack of environmental conditions in the 1924 license to an appropriate range of environmental measures that are necessary to address current conditions, as reflected in the 1998 license." The Federal Power Act, FERC said, "does not guarantee that a licensee will make a profit."

Using Tacoma's estimates, FERC concluded complying with the license will cost it $2.4 million per year, resulting in a one-percent rate increase, which would work out to an average monthly bill increase of 50 cents. It complained that "Tacoma nevertheless continues to insist" that even if is forced to run 240 cfs on an interim basis, it "will have no choice but to immediately reject the new license as economically prohibitive, thus effectively precluding any opportunity for meaningful judicial review.

"We disagree." FERC said, adding that the need for interim measures was clearly established in the presiding judge's report, in the new BiOps and elsewhere. "Thus, it appears, that under any reasonable scenario for continued operation of the Cushman Project, a minimum flow of 240 cfs will likely be required." The stay has been in effect for five years, the commission noted. It said if Cushman is to continue operating, it must provide some additional protection for fish.

Tacoma's Klein said the 240 cfs regime "is not the issue. There are other conditions. It's an open-ended license that lays the ground work" for annual increases in minimum flows until there will be "no power conditions" at all. The order gave Tacoma 15 days to review and recommend any needed changes to a previously filed plan to install a flow release valve, the equipment needed to implement the 240 cfs regime. On July 6, the utility complied, but said the changes it outlined were "not intended to apply to any permanent flow releases." -Ben Tansey

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