[1] Judge Finds Hydro BiOp Legally Flawed
Judge James Redden ruled last week in Oregon District Court that the 2004 biological opinion for running hydro operations to help ESA-listed fish populations is invalid.
The judge sidestepped an optimistic 2004 update to the status of listed salmon and steelhead by private consultants included in the BiOp analysis, and stuck with an earlier NMFS status review already years out of date, and said, "It is apparent that the listed species are in serious decline and not evidencing signs of recovery."
In his May 26 opinion, Judge Redden took issue with every major point made by federal attorneys in their defense of the document that found proposed operations for the federal hydro system would not jeopardize the ESA-listed species in the Columbia Basin. He had already found the 2000 BiOp wanting (NWF v. NMFS) and ordered NMFS to rewrite it because the offsite mitigation activities designed to boost fish populations weren't reasonably certain to occur.
After much internal debate, NMFS completely changed its method of analysis the second time around -- by separating the fish mortality caused by the dams' existence from that caused by their operations -- and tried collaborating with regional fish managers on its development, with less than limited success.
Defending this new methodology in court, federal attorney Fred Disheroon said that NMFS erred in its earlier BiOp by including too many actions that should have been part of the region's overall recovery obligation and pinning the blame for all salmon mortality on the hydro system.
But the judge didn't buy that one bit. He said the agency was entitled to only "limited deference" for its latest interpretation because it conflicted with its earlier interpretation.
Nor did he accept the agency's analysis that it should only consider the effects of actions over which it had discretionary authority.
"This has the effect of substantially lowering the threshold required for the mitigation elements of the proposed action," wrote the judge, who said, "only a comprehensive approach to jeopardy analysis will meet the statutory mandate." He said that the feds' analysis wasn't comprehensive enough to ensure that federal actions wouldn't likely jeopardize listed fish. Redden also found fault with the agency's critical habitat determination and said the agency was wrong to compare, rather than aggregate, the effects of the proposed action.
Ruling against a BiOp challenge by several irrigators associations at the same time, Redden said the government was proper to include tribal harvest in the environmental baseline by which jeopardy is analyzed, and to include non-tribal harvest in the area of cumulative effects.
Redden also sidestepped any thorny scientific issues, saying he declined to rule on the irrigators' other main argument that the science used in the BiOp analysis was "junk" because he had already found the 2004 BiOp invalid for other reasons, thus their motion for summary judgment was moot.
The ruling means that the injunctive process -- begun earlier this year by plaintiff groups to change the BiOp's proposed summer actions -- will continue. In fact, Redden scheduled a June 10 court date for oral argument in the matter. The feds want to barge as many fish as possible out of the Snake River to bypass lethal low flows in this low water year. Plaintiffs want to rely less on barging, and instead improve inriver survival using a combination of reservoir drawdowns, more spill, and flow augmentation.
"If the plaintiffs' motion were granted by the court, we expect the cost of this year's operation for our system would go up over $100 million," said BPA Administrator Steve Wright. "These additional costs would have to be borne by Northwest ratepayers."
Regional NMFS administrator Bob Lohn called the plaintiffs' proposal risky and speculative. "The region cannot afford to depart from sound science in protecting these species at risk."
A statement from the BPA Customers Group involved in the litigation said the ruling is a setback in the region's salmon recovery efforts. "Science and expertise -- not litigation -- should drive these efforts," said the Group's press release. "It is time to move these issues out of the courtroom and let the federal agencies, which have the expertise in these matters, do their job of managing the river and the hydropower system. Despite this ruling, the BPA Customer Group will continue to work strenuously -- as it has for decades -- with federal agencies to achieve salmon recovery in the Columbia Basin."
But lower Columbia tribes applauded the judge's decision. "Judge Redden's opinion is well-grounded, comprehensive and unambiguous," said Olney Patt Jr., executive director of the Commission. "We now have the immediate task of securing protections for this summer's migration. This is still a low-flow year and protecting the many summer and fall juvenile migrants is important for any long term rebuilding effort."
Redden ruled that his order is not yet final, therefore not appealable. Justice Department attorney Fred Disheroon said the situation should become more clear after the June 10 hearing on the plaintiffs’ motion to change summer operations. Others had expected for some time that the BiOp will eventually be headed for the Ninth Circuit Court for resolution.
Some attorneys have found in Redden’s ruling a yearning to go back to the previous BiOp with its strong reliance on offsite mitigation to help improve listed salmon stocks. However, Disheroon said "we don’t think we can legally go back to the 2000 BiOp." - Bill Rudolph
[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.
[3] Who Ate All The Fish? Just About Everybody It Seems
The tens of thousand of missing chinook from this year's upriver Columbia run may still be swimming somewhere off the mouth of the river, but may be in another form, having possibly been eaten as smolts by hordes of hake that have reappeared offshore in huge numbers.
The hake, also known as Pacific whiting for marketing purposes, travel in large schools and usually spawn off the California coast. But they have returned to Northwest waters, which have warmed considerably in the past two years.
Last summer, Canadian researchers found waters off Vancouver Island were even warmer than during the 1997 El Niño. In a recent paper, Frank Whitney, a research scientist with Fisheries and Oceans Canada's Institute of Ocean Sciences, reported that last summer the waters west of Vancouver Island were the warmest in the past 45 years. And though oceanographic data pointed to weak El Niño conditions for the past two years, beachcombers in southern B.C. were finding things usually associated with strong El Niño events, like a species of large squid that is normally seen off San Diego, some over four feet long.
But predation by hake doesn't explain all the mysteries, especially the disconnect between the high jack counts in both 2003 and 2004 and the much smaller-than-expected adult returns. The puzzle points to a combination of high juvenile predation on salmon, coupled with some other type of mortality once the fish reached the high seas.
University of Washington researcher Kate Myers told NW Fishletter that last year's joint cruises with Japanese researchers in the deep ocean showed high salmon abundance, mostly pinks and chums, with a lot of them headed for Asia, without any evidence of extreme mortality to any stocks. Chinook stocks were found to be more abundant in the Central North Pacific than during the years since 1991, with about three-fourths of them showing evidence of two years in the ocean. However, they were a bit smaller than chinook examined in 2003.
Myers and her colleagues reported that chum stocks in 2004 in the central North Pacific have been above the 14-year average since 2001. Sockeye numbers were below average last year, while coho and steelhead abundances were about average.
They also recovered a coded-wire tagged chinook from Idaho south of the Aleutians last August. It's only the fifth chinook from the Spud state to be identified since 1956. All five have been recovered in the northern part of the Gulf of Alaska, one near the western end of the Aleutians at about the 180th meridian, nearly 3,000 miles from its spawning grounds.
Myers said it seemed unlikely that the Columbia River salmon found conditions too poor to stay alive. Rather, they may have succumbed to some large predators, likely marine mammals, possibly fur seals whose winter migration routes can be far out at sea.
It has been reported that a spring chinook stock in Southeast Alaska's Stikine River that is genetically related to Snake River spring chinook is also showing much less than expected returns this year. Some scientists think that the genetic similarities of the fish may mean they spend their ocean lives in the same area, which is still unknown to biologists. However, if both stocks are returning at levels far below pre-season estimates, it could signal a common mortality element in their life-cycle.
Alaska biologists expected 80,000 chinook to return to the Stikine, which enters salt water near Wrangell, and have even opened a small commercial gillnet fishery on the run for the first time in years. Only about one-third of their expected 27,000-fish harvest has been caught so far.
But nearer to home, conditions for salmon have deteriorated the past couple years. Biologists from the NOAA Fisheries research facility in Newport, Ore., report that plankton levels have declined significantly. During the near-ocean's cool water phase after the 1997 El Niño event, plankton levels doubled off the West Coast. Since 1999, this huge increase in primary biological productivity helped boost salmon productivity of Northwest stocks to their highest levels in many years.
But now the warm currents are back, much as they were through most of the 1990s when a seemingly endless series of El Niño events brought mackerel, hake and other predators to waters off the Northwest Coast where they had decimated both hatchery and wild stocks in Washington, Oregon and British Columbia since 1993.
In recent years, large schools of anchovies have also reappeared off the coast, which has led some scientists to hypothesize that juvenile salmon may get a survival break from seabirds when these other species show up, who make use of an expanded menu.
But the hake, aka whiting, have experienced severe ups and downs as well, which seems to be a trait of species with high productivity and a short lifespan. In 1987, the hake biomass was at a historical high, according to the final 2005 harvest rule published in the Federal Register. Stock size moderated in the mid-1990s and declined to its lowest level in 2001, when it was actually declared an overfished species by NMFS. But that assessment was low and the whiting population has jumped so fast that the feds have recommended a total catch this year of nearly 270,000 metric tons. It would likely be even higher except for constraints on the bycatch of other groundfish species like rockfish, which have been severely overharvested.
Jack counts this year have been pretty dismal, only about half of last year's numbers and less than 20 percent of the number that signaled the monster returns in 2001.
As one NMFS scientist pointed out, hake numbers were low back then, with plenty of cold water upwelling to produce nutrients for building plankton diets for migrating salmon. A decent upwelling condition only began off the coast last week, he said, and the millions of young salmon are facing a horde of hake. He said a 400-mm long hake is capable of eating a 200-mm salmon smolt.
It was reported that NMFS scientists are preparing a memo that looks at potential causes for the mysterious fish declines, after earlier comments by NMFS regional administrator Bob Lohn suggested that high-seas fishing might be responsible. But there is little evidence of that occurring, either by foreign ships or the Alaska trawl fleet, which catches few chinook -- 30,000 or less a year -- and most of them are local Alaska stocks. Columbia Basin springers don't appear in the Southeast Alaska troll fishery either, which leads biologists to believe that the stock stays well offshore during most of its life in the ocean.
The trickle of adult springers passing Bonneville Dam, still 1,000 fish a day or better, is normal for this time of year, but the total number is only about one-third of the 250,000 fish expected by harvest managers. Their latest inseason update has pegged the upriver run at about 82,000 fish. So far, less than 74,000 have been counted at the dam. Managers opened the sport steelhead and sport and commercial shad fisheries, expecting little adverse impact on the remainder of the returning chinook run, which was estimated about 80 percent over and done with by the middle of May. - B. R.
[4] Mid-C Utilities Question USFWS Study On Hanford Fish Stranding
Mid-Columbia public utility officials say a recent study released by the U.S. Fish and Wildlife Agency and others on Hanford fall chinook fry stranding failed "to properly evaluate" the issues in the context of the seven-dam system on the Columbia River.
In a May 17 letter to regional USFWS head David Allen, the utilities questioned the need for another report, since the Mid-C utilities had already developed a new program to protect the fish after seven years of study. Besides, they said, the Hanford run is the healthiest in the Northwest, with returns in recent years exhibiting some of the highest numbers in the past 40 years, like 2003's 88,000 fall chinook.
In early spring, thousands of fall chinook fry are stranded in pools left by river fluctuations from load-following hydro operations. The USFWS study, funded in large part by some of the state of Alaska's share of federal salmon recovery funds, says that Grant PUD can do more to reduce flow fluctuations by changing operations at the utility's Priest Rapids and Wanapum facilities.
But Linda Jones, Grant PUD's director of communications and external affairs, says if the agencies responsible for the latest study had participated in the earlier work with the utilities, they would have realized the limitations at Grant's projects for reducing fluctuations, and that it takes the coordination of BPA and the mid-C's to make the program work.
Jones said the utilities were comfortable with the mortality estimates from their seven years' of study, reported two years ago and statistically similar to estimates produced in the latest report.
The USFWS study says fluctuations killed more than one million fall chinook fry in 2003, which they estimated at 12 percent of that year's production. Estimates at the time pegged the losses as several hundred thousand. A closer look at the report shows the earlier estimate is within the range of the newest estimate.
The utilities' letter also points out that Grant PUD has offered to release an additional million fry from its hatchery every year to make up for unavoidable losses. And they say that the Washington Department of Fish and Game and others have acknowledged that "no net impact is being achieved for fall chinook in the Hanford Reach."
An earlier letter to USFWS' Allen from Congressman Doc Hastings (R-Wash.) questioned the federal fish and wildlife agency's "attitude, approach and very conduct of this study."
In his April 13 letter, Hastings said he was especially troubled that "the FWS study was made possible by funding provided by the Alaska Department of Fish and Game. The Alaska Department of Fish and Game is an entity with clear bias and a direct interest (ocean harvest) in the outcome of the study. Their involvement raises serious questions to say the least." He said the study had the potential to disrupt the Priest Rapids relicensing process.
The new study was a cooperative effort between USFWS, the Columbia River Inter-Tribal Fish Commission, ADFG, USGS, WDFW, the Yakama Nation and several consulting services. - B. R.
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