[1] Judge Calls For $67 Million More In Summer Spill
Oregon District Court Judge James Redden granted June 10 part of an injunctive request by environmental and fishing groups to increase spill and flows for fall chinook in the Snake and Columbia Rivers. Redden OK'd their request for spilling water at lower Snake dams, but denied their calls for augmenting flows and drawing down several reservoirs to help fish move faster downstream.
The judge's decision means that most water at lower Snake dams will be spilled between June 21 and Aug. 31, allowing only enough power generation to service each dam. It's also an action that will significantly reduce the numbers of fall chinook collected for barging past the dams, since the spill reduces the effectiveness of the bypass system that collects fish for the transportation program.
The government's preferred action calls for collecting and barging about 95 percent of the fall run. Both federal, state and some private attorneys argued that spilling at lower Snake dams would put more than half the run at risk from lethal summer temperatures in both rivers. All flows in excess of 50 kcfs would also be spilled at McNary Dam on the Columbia between July 1 and Aug. 31. Redden encouraged all parties to reach consensus on this year's spill, otherwise, the action would proceed as ordered.
Though they admitted that any benefits from barging fall chinook compared to leaving them inriver are still speculative, the feds produced some sketchy evidence that in most recent years has shown positive results. In nearly normal water years, like 2002, transport SARs [smolt-to-adult return rates] were .78 percent, while inriver SARS were .70 percent. In the drought year 2001, when the water supply was only 48 percent of average, smolt-to-adult survival of barged fish was only .23 percent, while survival of fish returned to the river averaged .45 percent. However, the sample size was extremely small that year, only 11 adults were counted as survivors of the 2,400 or so juveniles tagged.
But the judge didn't buy federal attorney Fred Disheroon's argument that by granting the injunction, the court would be substituting its judgment for the action agencies' decision about what is the best course for the fish, denying to agencies the benefit of the doubt.
Ruth Ann Lowery, another federal attorney, told Redden that "this is not the time to try something new" and that there was significant risk of lower adult returns from changing operations. A declaration filed by NMFS scientist Chris Toole reported that the agency's survival model estimated 26 percent to 48 percent lower system survival for fall chinook under the plaintiffs' spill proposal.
Lowery also said survival of holdover fish, that portion of the stock which overwinters in the reservoirs, could be compromised by changing operations. NMFS has estimated the holdovers only make up about 3 percent of the outmigration, but contribute over half of the adult returns. More spill might flush more of them downriver during the summer.
Risky Business
But Judge Redden said by not spilling at dams where fish are collected, the agencies were not even preserving a semblance of the "spread-the-risk" policy it follows with spring chinook. "It would not allow a meaningful evaluation of the summer transportation program," he said in his June 10 ruling.
However, the feds were not interested in spreading the risk and they made that point clear, pointing out that low flows in the Snake this year were likely to create lethal temperatures for fish that couldn't be alleviated by cooler water from Idaho's Dworshak reservoir. And according to a declaration by regional NMFS administrator Bob Lohn, in recent years, the Snake fall chinook numbers had improved by about 400 percent, which showed, at the very least, that transportation had not prevented population increases. Lohn said the most recent survival data didn't give his agency any reason to change its conclusion "that transport neither harms or helps this population."
Corps of Engineers' biologists offered other reasons to stick with the maximum barging scenario. In other declarations they said they didn't have time to develop the best spill pattern at the lower Snake dams where fish are normally barged. "With no lead time to perform this evaluation, it is not possible to develop spill patterns that are most beneficial to fish under the low flow conditions expected this year," said Corps biologist Rock Peters. "Thus, it is unknown what the effects of spill at these projects would have on juvenile fall chinook passage survival."
However, Earthjustice attorney Todd True hammered away at the federal position. "The federal agencies are behaving like 'Big Tobacco,'" said True, and until they have "absolute truth," they will keep transporting fish.
But irrigators' attorney James Buchal said the feds' research wasn't tobacco science, it's just that there hasn't been much research on fall chinook survival because there haven't been very many fall chinook to study. Recent numbers show that "at least we're not killing them off," said Buchal, who added that more spill would be a "body blow" to transport studies. He said the issue should be debated at a level where each side's arguments could be better scrutinized, as in a regular evidentiary hearing.
NMFS Regional Administrator Bob Lohn said after the hearing that the judge's ruling meant that only about one-third the number of fish would be barged as originally planned. About 176,000 fish from Lyons Ferry hatchery have been especially tagged this year for survival studies of transported and inriver fish and are being released above Lower Granite Dam. Others familiar with the research say that the reduced numbers of barged fish still wouldn't likely jeopardize the studies. In fact, most juvenile migrants from the Snake have already passed Lower Granite, but later migrating fish from the colder Clearwater River are just beginning to appear at the dam.
Money No Object
BPA administrator Steve Wright said the added spill could cost $60 million to $70 million, and could lead to a 4 to 5 percent increase in wholesale power rates. The figure was later narrowed to $67 million.
Redden was unfazed at the expensive spill strategy. "The law is clear that an injunction to protect listed species from harm is necessary regardless of economic costs," he noted in his written ruling, which came out shortly after the hearing.
The judge also paid little heed to a request by attorneys from Northwest states for another week's time to finalize a proposal for summer operations. Representatives of each state's governor's office have been holding secret negotiations with action agencies for several months. A draft proposal would have added 22 more days of spill at McNary Dam, but kept most fish in barges, with BPA putting up $3 million in added mitigation funding this year.
Earthjustice attorney True called the states' plan more of a political science agreement than a biological science agreement, and characterized the addition of 22 days of spill at McNary as about "six buckets of extra spill." Yet he still voiced the possibility of working out a proposal with the federal agencies.
All Northwest states seemed to support the feds' barging policy. Washington assistant attorney general Michael Grossman called the plaintiffs' proposal "a risky strategy for fish." But Oregon Assistant Attorney General David Leith later qualified his state's position and told the judge that Oregon only supported the other states' proposed operation in 2005 in the context of the broader view of getting to an agreement over hydro operations for the next 10 years.
One attorney present said Oregon's remark was likely the turning point in the judge's decision-making process, although Redden had said the day before he was inclined to grant the spill request.
Judge Redden also denied a federal request to stay the plaintiffs' injunction. At the time, Lohn had said an appeal to the 9th U.S. Circuit Court of Appeals was likely. On June 15, the Corps of Engineers, BPA, and NMFS filed a notice of appeal with the Ninth Circuit (see story 2).
After Redden's ruling, utility representatives were predictably glum. "We're very frustrated," said Kevin Banister, manager of government affairs for PNGC Power.
"This decision is completely irresponsible," said Shauna McReynolds, spokesperson for a coalition of BPA customers. "It ignores science, it puts the courts in the position of running the hydropower system and it will expose endangered salmon to very dangerous conditions."
But environmental and fishing groups were buoyed by the spill decision, which has re-energized their campaign to remove the four federal dams on the lower Snake. "Salmon need relief this summer, and thanks to the ruling they'll get it," said American Rivers spokesperson Rob Masonis. "But what we really need is a workable long-term solution. We need to explore how to remove the four outdated dams on the lower Snake River and replace their benefits so we can protect farmers and ensure reliable grain transportation and energy production."
Judge Redden also denied the plaintiffs' motion to withdraw the 2004 hydro BiOp that he had ruled illegal May 26, and he called for a status conference on Sept. 7 to discuss the next remand and the possibility of withdrawing the 2004 BiOp, "and what, if anything, shall remain in place during the remand." He called on all parties to reach a consensus on these issues and even suggested the creation of a new, independent scientific panel to sort out some of the questions that stakeholders have argued about for years.
The state of Idaho promised a fight over the BiOp as well. State attorney Clay Smith said an appeal was inevitable. "In the Ninth Circuit or in heaven?" quipped the judge.
Smith said the practical impact of Redden's earlier ruling on the BiOp "tainted" the ground rules of the next remand, and made it impossible for NMFS to issue a no-jeopardy finding on hydro operations in the future.
" I don't think this remand will be quite like the previous one," said federal attorney Disheroon. He painted a complicated picture of a BiOp revision going on at the same time as an appeal process in the Ninth Circuit Court to decide whether the jeopardy standard developed in the 2004 BiOp will remain. If not, he said another alternative would be to take the issue to the God Squad, where an exemption to ESA strictures might be obtained if the feds can't come up with a reasonable, prudent alternative to current hydro operations, one that wouldn't jeopardize the listed stocks. - Bill Rudolph
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