2] Enviros Go All Out To Sell Judge On Expanded Summer Operations
Environmental and fishing groups filed a final flurry of declarations May 16 in federal court to counter harsh criticism of their proposal to boost summer flows and add spill. Federal officials and others have said that the proposal would likely kill more fish than their own BiOp plan to barge most fish out of the low-flow Snake this summer. With Oregon District Court Judge James Redden finding last week the BiOp "legally flawed," the stage has been set for a hearing on the injunction June 10 in his Portland courtroom.
Proposal supporters, most of them plaintiffs in the latest BiOp litigation, maintain that a combination of modest drawdowns and flow augmentation to boost water particle travel time by 10 percent, coupled with more spill and less fish barging, would double the overall system survival of migrating juvenile fall chinook to better than 20 percent.
They even borrowed the NOAA Fisheries SIMPAS survival model to help make their case, despite the fact that they had earlier criticized the model's assumptions in their litigation against the new BiOp. Now they say it's OK to use the model to analyze relative survivals from different operations, which is what NMFS did in its latest BiOp.
The latest round of filings has given plaintiffs a chance to flesh out their proposal, which they say is much less disruptive than federal critics had portrayed as full of draconian drawdowns and calls for more water than the system had available. Until last week, the plaintiffs had not been very specific about the elements of the proposal. In earlier filings, they said it was up to the feds to work out the best combination of operations to boost fish survival.
Environmental and fishing groups are now calling for a 10-foot drawdown of Lower Granite Pool, leaving other lower Snake reservoirs at minimum operating levels, and adding 130,000 acre-feet from upper Snake storage reservoirs to augment summer flows. They claim that water added from Dworshak Reservoir should cool both the river and critics' concerns over the high temperatures that fish will likely encounter if more water from the upper Snake is added to the summer operation.
Independent consultant Don Chapman, in an April 22 declaration filed by customers of the Bonneville Power Administration, said the environmentalists' proposal made the "faith-based" conclusion that improved flows would increase fish survival, "in and of itself," while the reality was more likely that leaving the fish in the river would force them into a "hostile water-temperature regime."
10-Foot Drawdown Wanted
The plaintiffs are also calling for a 10-foot drawdown of Lower Granite Pool to help improve water velocities, along with more than 140,000 acre-feet of additional water from the upper Snake, but other lower Snake reservoirs would stay at BiOp-mandated levels of minimum operating pool (MOP).
On the mainstem Columbia, the plaintiffs say flows could be improved by 10 percent if they want McNary Pool operated at MOP. This would entail keeping John Day Pool at minimum irrigation pool, while managing the reservoir behind The Dalles at average pool, and adding 920,000 acre-feet of water from upstream reservoirs to augment flows. This is a far cry, they say, from the 1.5 million acre-feet or more the feds suggested would be needed to comply with the plaintiffs' proposal.
They point out that the adult migrants would have to use a special exit chute in the fish ladder at Lower Granite to pass the dam successfully if the 10-foot drawdown was implemented. This was confirmed by NOAA Fisheries technician Jerry Harmon, who works at the dam, but he told Northwest Fishletter that it was likely water would have to be pumped into the fish ladder to keep it operating if such a scenario came to pass.
A 10-foot drawdown at Lower Granite would make barging impossible at the ports of Clarkston and Lewiston, said Dave Doeringsfeld, managers of the Port of Lewiston. He said the lack of dredging in port areas of the Clearwater and Snake rivers due to another ongoing lawsuit by environmentalists has required the reservoir to be held one foot above minimum operating levels (734 feet above sea level) which still makes it hard to navigate in some cases. Dropping levels by 10 feet would end all barging for the summer, he said.
The plaintiffs say this set of operating conditions, along with spilling all water at lower Snake dams in excess of station service, would spread the risk between barging fish and the inriver route much more equitably than the feds' plan to transport about 96 percent of the run.
They pointed to a memo attached to regional NMFS administrator Bob Lohn's declaration that showed PIT-tagged fall chinook may have had slightly better luck migrating inriver during the extremely low flow year of 2001 than if they had been barged. The projected inriver smolt-to adult return (SAR) rate in the memo was pegged at about 0.5 percent, compared to the barged return rate of about 0.3 percent.
However, the gist of the memo itself is that holdover fish that stayed in the reservoir until the following spring returned at nearly a 7-percent rate. This has led NMFS scientists to speculate that efforts to increase migration rates of subyearling fish may actually lead to lower overall return rates by flushing out many smolts that would normally stick around. The memo concluded that recent data from 2000 and 2002 didn't change the agency's earlier judgment that transportation appeared to neither help nor harm the fall migrants.
The overwintering phenomena has confounded recent survival studies, and has rendered as rather suspect any survival estimates, including those developed in the NMFS model, that assume all the fish leave as subyearlings.
Other recent research has suggested that nearly 90 percent of the adult fall chinook returning to the Snake from the brood year (2000) that produced the 2001 outmigration were actually holdovers that didn't leave the river until after that winter.
But a declaration by Bob Heinith, hydro program coordinator for the Columbia River Inter-Tribal Fish Commission, claimed that the high SARs for holdover fish reported by federal scientists "are not supported by available data." He cited a recent document from the Fish Passage Center that says true SARs for these fish are unknown because their true numbers are not known. He also said the holdover fish were unlikely to move downstream from any flushing action that feds speculated could occur from the plaintiffs' proposed operation.
Heinith also took a shot at the University of Washington’s CRiSP passage model, citing criticism of an earlier version by a group of independent biologists hired to peer review models used by regional scientists in the infamous PATH process. The four 1998 reviewers liked the simpler FLUSH model, that hypothesized a strong flow/survival relation. It was developed by state and tribal participants, and has since been thoroughly discredited by Pit-tag survival studies because FLUSH seriously underestimated juvenile survival through the hydro system. The CRiSP model had been calibrated with ongoing Pit-tag research.
The 1998 reviewers had also doubted much influence on overall fish survival from changes in ocean conditions, which also turned out to be wrong, since adult return rates improved up to ten-fold shortly thereafter. Later, two of the four reviewers changed their minds and said the CRiSP results fit the data better than the FLUSH model.
A declaration by consultant Ed Sheets addressing potential costs was also filed by plaintiffs. Citing his expertise, Sheets said the proposed operation may cost as much as BPA has estimated.
"Clearly, $50 million to $100 million is a lot of money," he declared. "However, the rate impacts for a large system like BPA are relatively small. The greatest impact would fall on consumers that are served by utilities that buy all of their electricity requirements from BPA." He said that would amount to about a 2-percent boost in their rate. If the power agency recovered its costs over two years, Sheets said the increase would only amount to 1 percent.
Sheets also complained about the way BPA accounted for its foregone revenue from operating the hydro system to help fish. "I am not aware of other businesses or government agencies that calculate the revenues or profits that they could have made if they had violated Federal laws, regulations, or court orders as a part of forgone revenue and 'costs,'" Sheets said. "Given BPA practices of reporting forgone revenue for fish and wildlife protection, it is interesting that BPA does not report the forgone revenue associated with meeting other legal constraints on power generation such as providing irrigation water, flood control, transportation, or recreation. All of these other federally-mandated actions limit the ability to generate electricity and reduce BPA's potential revenue. Hence, to be consistent, BPA would need to count them as 'costs' as well."
To be consistent, Sheets said, the more than 14 MAF of water used for irrigation would be worth $170 million to BPA if that water were used to generate power. He said the forgone revenue would be $280 million a year, about the same as BPA's estimate of forgone revenue from its fish and wildlife operations.
However, consultant Darryll Olsen, spokesman for two irrigator associations involved in the BiOp litigation, said the direct net value of an acre-foot of Columbia River water has been calculated as part of the recent study of water use by the National Academy of Sciences. He said the direct net value of one acre-foot of water is worth about $86 to irrigated agriculture, but only 12 cents to the commercial and sports fisheries, including tribal fisheries.
Meanwhile, officials representing the governors from the four Northwest states had been meeting about twice a week to discuss future hydro operations if the BiOp went down in flames. With Redden’s ruling announced last week, federal action agencies released a May 27 statement that said the talks had the potential "to achieve a broad agreement on how to improve the survival and abundance of salmon and steelhead...," but others say the talks are an attempt to freeze out the main plaintiffs in the BiOp case, environmental and fishing groups who are pushing for the summer changes. Though the state of Oregon stayed on plaintiffs side during the BiOp case, they haven’t supported the latest proposal for more flow, spill and drawdown.
Sources say the states are getting close to agreeing on suggested operations for the next 10 years, which is pretty close to current BiOp operations, with a sweetener to split any savings from implementing removable spillway weirs between the power and fish sides of the equation. The projected savings could amount to $10 million to $15 million a year, and states would like to use their shares to fund salmon recovery activities.
But lead plaintiffs in the BiOp lawsuit, environmental and fishing groups, aren’t parties to the talks, and neither are Columbia Basin tribes. Earthjustice attorney Todd True said the focus of the talks should be to improve river conditions for salmon, to get the runs restored and put people back to work whose jobs depend on healthy salmon runs. He said the region has focused far too long on more studies and funding. - B. R.
The following links were mentioned in this story:
NW Fishletter 194, March 31, 2005
NW Fishletter 75, Feb. 9, 1999
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