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[1] Feds Appeal Over Summer Spill, Say Judge's Assumptions 'Inaccurate'
[2] BiOp Judge Kills Spill Plan, Says Added Water For Fish Not New
[3] Power Council May Expand Fish Passage Center Budget Review
[4] Bonneville Spillway Flows Lowballed For Last 30 Years
[5] FERC OK's New Turbines For Grant PUD
[6] Tern Management Plan Released For Public Comment

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Citing new evidence that a reduced spill regime would likely kill only about 100 to 300 ESA-listed fall chinook smolts, federal attorneys fired off a motion to the Ninth Circuit Court last week in a last-ditch attempt to save their summer spill regime. After trading last-minute legal blows earlier this week, government and environmental lawyers settled down for a quick decision. But by yesterday afternoon, BPA spokesman Ed Mosey seemed resigned to wait a little longer. "Our lawyers don't think a decision will be announced till next week," he told NW Fishletter.

The one-year proposal to cut August spill at four federal dams on the Columbia River was blocked July 28 in Oregon District Court when federal judge James Redden granted a temporary injunction filed by environmental and fishing groups.

But the August 4 filing by the government took issue with nearly every point in Redden's decision. "The court's statements are based on inaccurate assumptions and do not support its conclusion that the requisite showing of harm had been made," said the feds' motion, which also noted the judge had already rejected their argument that he lacked jurisdiction in the case because plaintiffs had failed to comply with the ESA's 60-day notice to sue requirement. Redden had ruled that even in if feds were right on that point, the plaintiffs still had the right to go to his court under the aegis of another federal statute, the Administrative Procedures Act.

The appeal points out that federal scientists predicted a net survival benefit for fish under every scenario modeled to evaluate the action designed offset the spill deaths, 100 kaf of augmented flows in the lower Snake River from Idaho's Brownlee Reservoir.

The agency estimated up to 930 smolts or .25 percent of the run could die from the new spill regime in late migration years, but only about one-third that number would die if smolts migrated early, as the case now seems to be.

Fall chinook expert and USFWS scientist Billy Connor said in the appeal that the run was nearly 100 percent complete. Later migrating fall chinook like the Clearwater River stock mentioned by plaintiffs as a group that would suffer most from the proposal actually pass downstream in September or the following April, Connor said.

Arguing against the stay, Earthjustice attorneys said the Brownlee proposal "was criticized by virtually every state, tribal, and federal agency in the region" and that the feds' argument that their fish survival model was employed because it was the best they had, didn't mean the federal decision was rational or entitled them to "unquestioning deference" because earlier precedent has established that there is no "rational relationship between the model chosen and the situation to which it is applied."

The feds also said the augmented flows from Brownlee would likely add another 700 smolts in an early migration year, a boost that averaged out to only 2.3 kcfs for three weeks with overall flows in the 35 kcfs range.

But the augmented flow itself became a major bone of contention. The judge agreed with plaintiffs' arguments that the water was not new nor added to previous requirements already called for in the 2000 BiOp

When is New, New?

However, the appeal argued that the water is new, since the BiOp's call for more water from Idaho Power's Hells Canyon Complex can only be completed after an ESA consultation with FERC and the Idaho Power Commission.

The agreement with Idaho Power called for the water to be released over a three-week period, according to a declaration by Greg Delwiche, BPA vice president for generation supply. Plaintiffs had argued that the 100 kaf was released early in July, not uniformly throughout the three-week period as modeled by federal scientists to estimate survival benefits.

In his ruling, Redden cited the early water release as one reason not to trust the feds' conclusions about their predicted benefit to listed fish from the Brownlee offset, one they had claimed compensated for any losses from reduced spill.

But Delwiche said the slower water releases actually did occur, though more water was released as well to satisfy Idaho Power's "own purposes." He also said that NOAA Fisheries' modeling effort, which used average river flows, was appropriate because real world variations were already "anticipated" because the regression model was derived from "real river fish survival," which reflected both diurnal and day-to day flow fluctuations in the river.

In last-minute responses, plaintiffs' attorneys targeted the latest remarks by Connor and Delwiche, arguing that NOAA Fisheries had earlier presented evidence that suggested 39 percent of the Clearwater stock would migrate in July if the run was early. They said that the feds can't revise their survival analysis with this new information as a "post-hoc rationale for an arbitrary decision," and called for the declarations to be stricken from the record because the evidence presented in them may not have been available for review at the district court level.

They also attacked Delwiche's support for Connor's modeling assumptions because "he apparently possesses no special qualifications to testify about the biological impacts to salmon...."

But the feds answered by saying that the portions of his declaration regarding the timing of the Brownlee releases and BPA's agreement with Idaho Power are both within his area of expertise. They characterized the latest declarations as "updated information based upon findings made since the district court's decision."

Double Benefits Alleged

Plaintiffs included affidavits from several fish managers that said NOAA Fisheries used fish survival estimates from 1995 to 1999 in their jeopardy analysis for the 2000 BiOp, a time when water releases from Brownlee reservoir were substantial, thereby claiming that the agency's analysis has effectively "double-counted" the benefits from the 100 kaf flow augmentation that the fish agency OK'd as an offset to the reduced spill plan.

In their latest reply brief, federal attorneys conceded in a footnote that an earlier, somewhat contradictory statement by appellants was "overly broad." They said a full Brownlee Reservoir was assumed when NMFS staffers were determining how often BiOp flow targets would be met, but said that is a separate issue from whether NMFS was counting on future releases from Brownlee Reservoir.

The feds also argued that plaintiffs' claims that the survival models used by government scientists are invalid--"even though these models represent the best available science to evaluate the impacts and benefits of the decision"--would "paralyze" agencies from being able to adjust BiOp operations "because there will never be perfect information, nor predictive models, with no margin of uncertainty."

The feds' response also took issue with plaintiffs' assertions that juvenile fall chinook survival rates were higher in the late 1990s, before the 2000 BiOp was issued. They pointed out that the low-flow year of 2001 was the only period since then where the fish failed to exceed the 1994-1999 average survival rate, and that adult survival rates for 2001 and 2002 exceeded both the 1994-1999 average and the 2010 performance standard.

With adult survival rates for fall chinook this high, the feds also countered plaintiffs' argument that the listed fish in question were at an imminent risk of extinction. They pointed to an earlier declaration by NOAA Fisheries assistant regional administrator Brian Brown, who said that the current condition of Snake River fall chinook "is better than it was when the 2000 BiOp was adopted." Hence, they say improved condition of the ESA-listed stock has given them flexibility to modify the spill regime for this year, and demonstrates that they are not acting "arbitrarily or capriciously" as Judge Redden had ruled.

After the appeal was filed, Earthjustice attorney Todd True, who represented the groups challenging the new spill regime, called the action a slap in the face to fishing communities, tribes, and conservationists.

"Of all the millions of dollars spent trying to rescue vanishing salmon runs in these rivers," True said, "one of the most effective techniques has been this release of water at just the right time--which is now. To withhold the water from these fish is bad resource management, bad economics, and bad environmental policy. It is also illegal."

True said the appeal reflected "a determination to put a small amount of money--perhaps a dime a month off residential electric bills--ahead of restoring sustainable wild salmon runs."

Public Interest Argued

But the economic issue was also grounds for appeal, with federal attorneys claiming that Judge Redden failed to give proper weight to the public interest. An attached declaration by BPA head Steve Wright said the one million dollars a day or more that would have been saved by implementing the new regime, a figure that represented 20 to 32 percent of a proposed $88 million change to net revenues that could reduce rates by up to 7.7 percent.

Wright said BPA has already spent over $5.6 million to pay for offsets to improve fish survival. Idaho Power was paid $4 million for the 100 kaf to aid the listed stock of fall chinook and another $1.5 million was spent boosting the pikeminnow predation program, which NOAA Fisheries decided did not meet criteria as a new action, since it was already called for in the 2000 BiOp.

Another $100,000 funded a new agreement with Grant PUD to further reduce flow fluctuations in the Hanford Reach to aid juvenile fall chinook in that part of the river, a stock not listed for protection under the ESA.

BPA customers filed amici briefs with the appeal, saying that Judge Redden has abused his discretion by granting the injunction. They said benefits to fish, if any, were "very tenuous" and did not counterbalance harm to the Northwest.

Their filing included comments from representatives of Northwest industries, who told the court how much their companies would save from the reduced spill regime. Noting that the Northwest economy was still suffering some of the worst conditions in the nation, Alcoa expected to save $1 million, Georgia-Pacific about $250,000, and Weyerhaeuser said it would save $720,000 from the change in summer spill.

Portland attorney James Buchal, representing Northwest irrigator groups, also filed an appeal in the Ninth Circuit to stay the injunction. His motion claimed that Redden "improperly seized from respondent the authority to fine-tune salmon management programs of enormous cost, complexity and burden," and that the feds' decision to trim a $38 million program " to produce a handful of "endangered" adult Snake River fall chinook salmon, if indeed the tiny theoretical changes in survival have any measurable effect in the real world was well within respondents' discretion conferred by law." Buchal also called for Judge Redden to be disqualified because of bias on the side of plaintiffs. -Bill Rudolph


A federal judge ruled July 28 in Portland that a plan by federal agencies to reduce summer spill at federal dams falls short of ESA obligations to protect Snake River fall chinook. Judge James Redden granted an injunction to maintain status quo operations, siding with environmental and fishing groups who brought the action last month after earlier success at bringing down the old BiOp in Redden's court a year ago.

The judge agreed with the groups who took issue with NOAA Fisheries' decision to approve an additional 100 kaf of flow from Idaho's Brownlee Reservoir to make up for the losses. The feds had estimated mortality to the ESA-listed stock from the reduced spill program in the 100 to 1,000-smolt range. The feds said the 100 kaf would improve juvenile survival by one percent.

Redden's ruling wasn't unexpected by long-time court watchers familiar with his record. They say that since his days as Oregon's attorney general, Redden has shown strongly pro-environmental views. Before oral arguments began last Wednesday, Redden even admitted to all parties that he was inclined to rule for the plaintiffs.

The water being added to improve smolt survival wasn't really new, he said, citing plaintiffs' arguments that Idaho Power has released Brownlee water during July in most recent years, anyway.

"If we are working at a deficit, we should not be cutting back a valuable tool [spill]," he said.

But utilities stung by the decision called the move a missed opportunity to add common sense to fish recovery efforts. "The judge ordered continued waste," said consultant Jim Litchfield, who represents the state of Montana at federal decision-making forums that govern river operations. "The customers won't stand for it."

The reduced spill regime would have saved BPA customers up to $28 million this year, according to agency estimates, a reduction that utilities considered a step in the right direction. But with the injunction, the move toward cost-effectiveness that began as a recommendation from the Northwest Power and Conservation Council seems stymied for now.

"The system is broken," said Pat Reiten, president of PNGC Power, a member of a coalition of BPA customers who supported the change in operations.

But environmental and fishing groups, led by Earthjustice attorney Todd True, hailed the ruling as a significant step for the future of wild salmon. "For the first time," said True in a July 28 press release, "a federal court has held the federal agencies that operate Columbia River dams accountable to the promises they made to restore salmon to these rivers. We have a long way to go, but this could be a turning point for the few wild salmon we have left."

During oral arguments, True said that Idaho Power had released water in July from Brownlee in eight out of the past 11 years. He said the 100 kaf contracted for this July was "only a small down payment on flow measures that haven't been met."

True also argued that the hydro BiOp still in place calls for more water from Brownlee as one action to improve fish survival, even though no agreement has been formalized.

But federal agencies called the added flow a new action, and to make sure it would happen, the Bonneville Power Administration paid Idaho Power $4 million early last month.

However, after oral arguments were heard in Redden's court on July 28, he ruled that the 100 kaf from Brownlee "was not new or added water," so that federal claims of a net improvement were unsupportable. Redden also agreed with plaintiffs who charged that the feds' model, which averaged out the added flow release to a steady 2.3 kcfs for three weeks, did not reflect the real fluctuations in flow involved in the action. Hence, he ruled the decision of the agencies was "arbitrary and capricious."

True had called the feds' "even flow" assumption a critical one. Further, he cited a declaration from independent consultant Dr. Gretchen Oosterhout, who said that juvenile survival through the hydro system had declined from the mid-1990s. [In her statement, Oosterhout had averaged post-1999 fall chinook survival data to make this point. But her analysis included the extremely low in-river survival from the drought year 2001]. It was a point not effectively rebutted by the feds.

Instead, Justice Department attorney Fred Disheroon admitted the passage model wasn't perfect, but noted that the federal analysis showed that few fish out of the million-fish run were going to be affected by the change to the spill regime, and that their numbers were within the study's margins of error.

He said the SIMPAS model used by the feds to estimate spill effects is a spreadsheet model that uses averages. But with no way to model real-time affects from flow fluctuations, the plaintiffs argued that real benefits couldn't be predicted.

Earthjustice attorney True also argued that the model overestimated survival of fall chinook through Lower Granite Reservoir because the 55 percent survival rate was calculated in 2003 at a time when extra water was being released from Brownlee.

Ninety percent of the fall chinook were barged, said Disheroon, leaving the rest to cope inriver, where improved bypass systems built at dams in recent years have created alternative routes to turbines. By the time the inriver migrants reach Bonneville Dam, he said only 20 percent of them are still alive. Put in context, said Disheroon, the reduced spill regime calls for ending August spill at the lowest two dams when fish numbers are small. Furthermore, he noted that it has been found that spill at certain dams has actually been more harmful to fish than the bypass systems.

Disheroon said federal agencies estimated only nine to 27 more adults would return from the full summer spill program at a cost of millions of dollars.

Arguing the Brownlee release as "new" water, Disheroon said there was no evidence that it was going to be available this year until BPA had paid for it. Whatever the BiOp assumed, he said, the extra water wasn't going to be there without the agreement with Idaho Power.

"You're being asked to believe that Idaho Power was almost committing fraud," to take the money when they were going to release the water, anyway, Disheroon told the judge.

Disheroon said the expert opinion of the agencies was entitled to full deference, a point made more forcefully by attorney Jay Waldron, representing defendant intervenor Inland Ports Association.

"[The plaintiffs are] asking you to substitute your judgment for theirs," Waldron told Judge Redden, noting that it was an operational decision. He said Redden's inclination to rule for the plaintiffs on the grounds that the added flow was not "new" water was "dead wrong," because it wouldn't have been guaranteed for release in July unless BPA had paid for it.

But the judge felt otherwise, saying he found fundamental defects in the agencies' reasoning that the Brownlee water was really a new measure to mitigate spill losses. In his written opinion issued a day after the hearing, Redden said the agencies' own analysis "concludes that a curtailment of spill will kill many listed juvenile fish, yet there is no real offset offered by the government."

"Regardless," wrote Redden, "this is not a numbers game. We are faced with a conclusion reached by the government itself in the 2000 BiOp that the fish are in jeopardy unless the RPA reasonable prudent alternative is implemented. Given that the government has failed to demonstrate that the proposed modifications to summer spill operations are consistent with the RPA, the prospect of jeopardy would again rise if the proposed curtailment of spill were to occur."

NOAA regional administrator Bob Lohn told NW Fishletter that the injunction process was too limited to clarify some of the agencies' findings and correct misunderstandings in the short time frame allowed. Clearly, he said, a trial setting would have given federal attorneys more time to explain their analyses and decisions.

Lohn said he still believes the SIMPAS model is the "best, available science," and he pointed to recent progress reports that show significant improvement in juvenile survivals, "other than 2001," that show the region is "on track to achieving what we ought to be."

The NOAA administrator said Redden's decision shows that the judge has a strong interest in protecting fish, which will help ensure that the next BiOp will be adequate to protect fish and be legally defensible. A draft is expected by the end of the month.

BPA spokesman Ed Mosey said the ruling doesn't mean BPA will reduce its effort to support more cost-effective fish recovery measures after the six months staffers spent crafting the latest proposal.

Though most Lower Columbia tribes filed amicus briefs supporting the injunction that said the reduced spill plan was a violation of their treaty rights, they did not follow through on threats to litigate the issue on their own in the ongoing US v. Oregon process.

After the decision, Olney Patt Jr., executive director of the Columbia River Inter-Tribal Fish Commission, said common sense had prevailed. "Judge Redden's decision has shown the courts will shut down attempts by industry schemers and their BPA accountants to dictate Columbia River salmon policy with plots that slap the face of sound science."

But some of BPA's customers felt the decision showed that the region was heading in the wrong way. "Today's decision moves away from common sense salmon recovery," said Shauna McReynolds, spokesperson for the Coalition for Smart Salmon Recovery. "This was an opportunity for more cost-effective fish recovery and the current system doesn't seem to allow that." -B. R.


At this week's meeting of the Northwest Power and Conservation Council, a discussion over a potential budget increase for the Fish Passage Center has expanded into the notion of a further review of the agency's activities. The FPC collects and disseminates data on both juvenile and adult fish passage through the hydro system, hatchery releases, river flows, dissolved gas levels, and other pertinent information.

As an advocate for fish managers and tribes, the Center's staff, led by its manager Michele DeHart, have provided the nexus for analyses by state, tribal and USFWS personnel that have countered work by federal agencies with their results posted on the FPC website. Much of their work was cited by environmental attorneys last month in a successful attempt to block a reduced summer spill regime at federal dams that is now on appeal.

As Washington Council member Larry Cassidy pointed out, the Center is responsible for some numbers that certain elements in the region "do not want to see." But others say the FPC has overstepped its bounds and should be reined in (See NW Fishletter 143).

After discussion of the request for an increase of $145,000 over its $1.3 million FY 2004 budget to pay for higher office expenses, improved hardware and software upgrades, and cost-of-living increases that follow guidelines for federal employees even though FPC staffers are not federal employees, the conversation shifted from the possibility of flat-lining the agency's current $1.3 million budget to reducing the scope of its workload by prioritizing its tasks. FPC supporters said any budget reductions would clearly reduce FPC staffers' ability to process public requests.

Council chair Judi Danielson said she was entertaining the notion of asking several interested council members to look "deeply into some of these issues." Members will digest earlier reviews of the FPC and discuss it again at their October meeting.

Oregon Council member Gene Derfler said a review could lead to more efficiencies in the fish and wildlife program. He said that "duplication" could be reduced between the FPC's website and the DART [Data Access in Real Time] website from the University of Washington's Columbia Basin Research group, which, he said, contained six or seven times more information. He said that "perhaps" the FPC has put itself in a position where it's very difficult to make changes.

Columbia Basin Fish and Wildlife Authority director Rod Sando reminded the Council that the FPC didn't just collect other agencies' data, but also produced numbers from the smolt monitoring system at federal dams on the Columbia River.

FPC manager DeHart said her staff was working to reduce expenses, including the possibility of changing the federal pay policy and looking for new office space. -B. R.


The Corps of Engineers has determined that its estimates of daytime spill volumes at Bonneville Dam have come up significantly short of reality, especially when spillway gates are only open one or two feet.

The problem came to light after hydro operators noticed flow discrepancies between Bonneville and The Dalles dams last year, said Laurie Ebner of the Corps' Portland District, but others say it has been a puzzle for much longer. Namely, just how did the hydro system create water between the two dams?

Ebner, reporting last week to the Technical Management Team that governs real-time river operations in Portland, said the flow pattern at Bonneville was changed in 2002 after flow deflectors were installed in the spillway to reduce dissolved gas supersaturation. At that time, the spill pattern was evenly distributed throughout all eighteen bays, different from an earlier operation that concentrated spill at both ends of the spillway. That's when the discrepancies became more apparent.

But the problem probably goes back to the early 1970s, when 10 feet was added to the bottom of most of the 50-foot spillway gates, Ebner said, noting that the flat bottoms of the gates were re-engineered to sport 45-degree angles designed to reduce vibration.

Now operators think that the re-engineered gates were actually open four inches less than their measuring devices read. When they assumed they were spilling 50 kcfs, it's likely they were actually spilling about 30 percent less, or 35 kcfs.

However, at larger spill volumes the effect was less pronounced, so that a reported spill level of 100 kcfs is more likely 90 kcfs, or 10 percent less.

Ebner said the Corps is starting a program to re-calibrate the gate openings and verify that the flow discrepancies between the two dams will be cleared up.

She said there was always "inherent uncertainty" in regulating the river, with confounding factors such as contributions from tributaries and fish ladder flows. A 5-percent difference between actual and computed discharges would be considered a good agreement, Ebner said.

But with more water actually routed through daytime Bonneville powerhouses than originally thought, BPA's TMT representative Scott Bettin told NW Fishletter that the dam was actually producing about 60 MW/hr more power at spill levels of 50 kcfs than they thought.

He said a test of the dam's new corner collector for juvenile fish passage has called for 50 kcfs spill for much of the time to reduce eddies and improve fish exit time. The good news is that the collector seems to be working fine, even if spill levels are less than researchers thought.

With the agency selling more power during these spill regimes than anyone was aware, some fish managers are already grumbling about some form of payback, but there have been no estimates of how much the windfall may have been over the years.

With the BiOp's summer spill program now in place, nighttime spill at Bonneville Dam is about 150 kcfs with total flows about 200 kcfs. Daytime spill is averaging at 87 kcfs, according to the old math, that is. -B. R.


The Federal Energy Regulatory Commission announced July 23 that it had approved Grant PUD's request to replace 10 old turbines at Wanapum Dam on the Columbia River.

The new turbines are designed to improve juvenile fish survival, and plans call for one to be installed and tested next spring. Part of the design costs were met by a $2.4 million DOE grant.

As part of its onging effort to improve juvenile survival, the utility will also make modifications to the dam's structure and improve the wicket gates and vanes that direct water to the turbines.

If the new turbine proves successful, the other nine are expected to be replaced by 2012.

Grant announced earlier last month that this year's anti-stranding operation in the Hanford Reach to help young fall chinook was very successful, meeting goals to reduce flow fluctuations more than 97 percent of the time, according to Tim Culbertson, the PUD's general manager.

Between March 21 and June 12, flows remained within constraints all but 51 hours, which cost the utility about $2.5 million in lost power production.

"Our production has improved significantly compared to the past two years, when the rearing period program was being developed," said Joe Lukas, who was promoted to assistant general manager for Grant's operations in May from his earlier position as senior biologist. "I am extremely proud of our operations team and the biologists who made this success possible,"

BPA and Grant PUD have partnered up to protect the salmon fry emerging from gravel in the Reach, in a new agreement that includes Chelan and Douglas PUDS, the Washington Department of Fish and Wildlife, NOAA Fisheries and the Colville Tribes.

Grant PUD says records show daily flow fluctuations were 41 percent better than in 2002, which reflected more coordination between dam operators The program was voluntarily extended by BPA to include two more weekend periods beyond the four weekends in the original agreement to offset non-listed fish losses expected from this summer's reduced spill program which was nixed by a federal judge July 28. -B. R.


The US Fish and Wildlife Service has released a draft environmental impact statement that weighs options for managing the huge number of Caspian terns, nearly 10,000 breeding pairs, about 70 percent of the West Coast population, that nest annually at the mouth of the Columbia River and feast on large numbers of juvenile salmon, including some listed for protection under the ESA. The document is part of a settlement of a lawsuit filed by bird lovers after the Corps of Engineers took actions to move the population further downstream from an earlier nesting site at Rice Island where the birds' diet was made up of more salmonids.

Through a combination of measures, the terns were encouraged to move downstream to East Sand Island, where their diet was less dependent on young salmon and steelhead. But plaintiffs in the lawsuit, the National Audubon Society, Defenders of Wildlife, Seattle Audubon Society and the American Bird Conservancy weren't satisfied with that action.

Government biologists say there are two reasons to reduce the numbers of terns on the Columbia by spreading them out. First, it would reduce predation on salmonids. And secondly, if the tern population was less concentrated, it would reduce the possibility that a large portion could be harmed by "storms, predators, human disturbance and disease."

A NOAA Fisheries report released in June says that terns nesting on East Sand Island eat more steelhead than salmon, by far. Government researchers estimated that in 2002 , the terns ate nearly 800,000 steelhead, about 6 percent of the run.

The management alternative preferred by the feds calls for reducing tern nesting habitat on East Sand Island and re-distributing most of the birds throughout the Pacific Coast. They say by doing nothing, the current nesting habitat would be fully "vegetated" within the next three years, a condition unsuitable for the nesting birds. The government says the terns would likely abandon the colony at that time.

If the colony was reduced by about two-thirds, scientists estimate that the population growth rate of all ESA-listed Columbia Basin steelhead stocks would increase by one percent or more, with initial benefits realized six to seven years after the project begins.

The draft EIS says the projected improvement in steelhead population growth rate is similar to increases that would result from hydropower improvements (0-4 percent), but well below the 4 to 8 percent increase that could occur from harvest reduction.

"Cumulatively," says the EIS, "the variety of salmon recovery actions have the potential to influence population growth rate to a substantially greater degree than would be realized from solely reducing predation from avian predators in the Columbia River estuary."

The draft EIS also say if measures taken to transplant most of the terns don't work by 2008, then a lethal control program would be instituted to reduce the population by 50 percent.

In any case, the plan calls for the Corps of Engineers to continue harassing birds at upriver nesting sites, and issuing egg-take permits at upper estuary islands if non-lethal efforts to reduce bird numbers fail. The Corps would also resume disposing of dredge spoils on the downstream end of Rice Island, site of the former colony. -B. R.

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