[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
[2] Feds Appeal Spill Decision to Ninth Circuit
Three federal agencies have announced they will file for an emergency stay of Judge James Redden's June 10 order in the 9th Circuit Court that calls for adding $67 million in summer spill at federal dams, part of a request by environmental, fishing groups and some tribes who had earlier successfully challenged the latest BiOp on hydro operations. The BPA customers group involved in the BiOp litigation also filed a motion to appeal the spill order.
With spill slated to begin at lower Snake dams on June 21, federal attorneys say an emergency stay is necessary to avoid "immediate and irreparable" harm to ESA-listed fall chinook. They headed into court, armed with a motion that said Judge Redden had taken "the unprecedented step of experimenting with salmon migration by altering long-standing Corps summer operations..."
The Bureau of Reclamation, the Corps of Engineers and the National Marine Fisheries Service say that Redden's error is "exacerbated by the fact that it does not point to any specific findings or evidence in the record to justify this experiment, nor does it even address any of the numerous declarations and evidence put forward by NMFS and the Corps to the contrary."
"We support the Department of Justice's decision to appeal the injunction decision," said Bob Lohn, Northwest regional administrator of NOAA Fisheries in a June 16 press release. "The primary effect of the injunction is to greatly reduce barging of lower Snake River fall chinook this summer, at a time when the Snake River is likely to have especially low flows and warm water. Both of these conditions are risks for salmon."
The emergency motion says that Redden's order is based on "mistaken interpretations of past NOAA statements," and could lead to higher levels of total dissolved gas that violate state standards and harm fish, along with the possibility of compromising research.
The feds' latest motion also says the only basis cited by the court for its order is the "mistaken belief" that the ordered spill regime is consistent with requirements of the 2000 BiOp's "reasonable, prudent alternative" and would help the listed stock by allowing more fish to migrate inriver to compare with transported fish. The feds say the 2000 BiOp called for a study after transmission upgrades had been completed, which they now have. Under the 2004 BiOp, the feds say the research is still on the table, though it has been deferred until surface passage improvements (the addition of removable spillway weirs) are completed to make results relevant to future operations.
By putting more fish in the river to "spread the risk" as is done with spring chinook, the feds say the court has mistakenly compared apples with oranges, since the agencies "expressly" did not adopt such a policy for the summer migrants because of the different circumstances facing them. The motion says NMFS has rejected the shift away from transporting summer fish, "pending development of better information about the relative benefit of transport." They say the court has imposed "unwarranted risks" by substituting its own judgment and imposing an "untried and experimental approach."
Further, they say the court abused its discretion by not including "in the balance the harm to the public from lower electricity production by BPA and likely rate increases to customers." BPA administrator Steve Wright has said the added spill could boost wholesale rates 4 to 5 percent next year. -B. R.
[3] American Fisheries Society Review Flunks Latest Hydro Biop
The 2004 hydro BiOp isn't just "legally flawed," it's also scientifically flawed, according to a review of the document released last week by the American Fisheries Society.
The anonymous AFS reviewers delved into issues that U.S. District Court Judge James Redden stayed away from in the ruling he made several weeks ago, when he threw out the BiOp more on procedural grounds, and ruled all the scientific issues moot.
The AFS review says the BiOp doesn't pass scientific muster. "As demonstrated," says the document, "the predicted outcome of the remand for the majority of the ESUs [Evolutionarily Significant Units] does not appear to avoid an appreciable reduction in the likelihood of both survival (i.e., there is no change) and recovery."
In fact, the report says it's not clear whether recovery could even be achieved by removing "most" hydro projects in the Columbia watershed, but it said benefits to Snake River stocks would be "assured" by removal of the four lower Snake dams.
The review said that even using optimistic population trend data, nine of the 13 ESUs are expected to go downhill in the short term. As for the long term, the new BiOp estimates that eight ESUs will have no change or possibly some improvement, which the reviewers said implied an "acknowledged and acceptable risk" to most stocks from the proposed actions, which includes both hydro operations and non-hydro offsets. But that much risk provides "little certainty that these actions will avoid an appreciable reduction in recovery."
The new BiOp puts too much emphasis on predator control (like the pikeminnow bounty program), according to the AFS reviewers, who say its success is "fraught with uncertainty," and should be more "holistic" to focus on non-native predators as well.
The review said the value of fish transportation is not clear, and provides only marginal benefits to some stocks.
Recent improvements in stocks are likely due to better ocean conditions coast-wide, rather than from mitigation within the basin--so larger fish numbers shouldn't be used to justify such mitigation efforts, the report said.
The reviewers said random adverse events like this year's drought imperil recovery efforts--mitigation proposed in the latest BiOp should be "more aggressive and focused" to ensure survival and begin recovery of the listed stocks.
Since the 2004 BiOp put the dams' existence in the environmental baseline, the AFS reviewers said it must be recognized that the environmental degradation from the dams puts more emphasis on mitigation assumptions to ensure that NMFS carries out its mandate to protect and recover the stocks.
However, by putting the dams in the baseline, they say, the agency's latest opinion accepts more degradation to the environment and population declines, and assumes that such losses will be made up in the future by predator control and removable spillway weirs.
On the other hand, the reviewers appreciated the ESU focus in the 2004 BiOp, and the effort to relate each action to specific ESUs, which should allow for a more comprehensive assessment of each ESU than the earlier BiOp provided.
The AFS review was a hurry-up affair requested last October by the tribes, who wanted to know if the findings in the new BiOp "significantly departed" from past assessments. They also wanted to know whether "sufficient technical capacity" had been demonstrated to differentiate between the effects on fish from the dams' existence and from dam operations.
They further wanted to know the limiting factors for fish recovery in the Columbia Basin and whether the dams have a limiting effect.
The tribes asked a couple of real puzzlers in their request--whether the proposed hydro actions adequately spread the risk for "unknown consequences," and if these were enough to prevent further fish declines.
The AFS reported that five reviewers responded in time, and represented expertise in salmonid fisheries, water quality aquatic ecology, hydrology, and hydropower policy. Three of them were PhDs, two had Master degrees, with some having done previous research on salmonids, while others came from outside the Northwest.
The AFS sent a letter to President Clinton in 1999 signed by 200 scientists that supported removing the four dams before the last BiOp came out. - B. R
[4] Snohomish Fish Plan Moves Forward, But Harvest Issues Remain
The 38-person forum created for recovering salmon in the Snohomish Basin north of Seattle voted unanimously last week to support a $134 million, 10-year effort to improve habitat for the benefit of ESA-listed chinook and bull trout. But the continuing interception of Puget Sound stocks by Canadian fishermen may put the ambitious effort at risk.
State fishery officials say the overall harvest of Snohomish basin chinook will be more than anticipated, mainly due to increased fishing by Canadians. After several years of reduced catches out of concern for their own weak fish stocks, the Canadians are back to catching their limits allowed under the salmon treaty signed by both nations.
Pat Patillo, a biologist with WDFW, told NW Fishletter that the Snohomish plan calls for a maximum exploitation rate (ER) of that watershed's chinook populations of 24 percent, but the stepped-up Canadian harvest will likely boost the overall ER to about 33 percent this year. With U.S. fishers accounting for about half the catch, it will take more reductions on the U.S. side to stay within the guidelines of the Snohomish plan.
The Snohomish plan says annual harvest rates below 24 percent will help fish numbers increase to recovery targets if fresh water and estuary habitat is improved. In the 1970s, nearly 80 percent of the returning fish were caught every year.
The plan's goals are pretty much the same as those outlined in a draft released last fall, with recovery actions hoping to improve fish numbers enough to reach 80 percent of the estimated historical chinook population--20,000 to 50,000 fish.
In 2003, about 5,500 chinook returned to the Basin. In 2002, about 7,200 fish showed up. In 2001, nearly 8,200 chinook spawned in the system, about twice the 1987-1998 average.
The plan calls for restoring a mile of shoreline and 1,200 acres of tidal marshlands, fixing 11 miles of riverbanks, and adding to the 236 miles of intact banks in the basin. It also suggests adding a couple hundred acres of riparian habitat to the 6,000 acres already designated as such. Capital costs of $82 million would make up the largest part of the 10-year budget, with another $31 million designated to pay for land acquisitions and $23 million allotted to run the programs.
The Snohomish plan is just part of an overall Puget Sound recovery plan that's expected to be finalized by the end of the month and rolled out for public comment by early fall. However, other chinook stocks in the Sound face the same dilemma over harvest.
In the Skagit watershed, where a recent agreement was signed by both tribal and agricultural groups to restore runs, harvest interception by Canadians plays an even larger role. WDFW's Patillo pointed out that about 40 percent of returning Skagit River chinook are expected to be harvested this season, with about 29 percent of them caught in Canada.
About 26 percent of the Stillaguamish River chinook are expected to be caught, with Canadians accounting for about half the harvest. A $44-million, 10-year plan was just announced for the Stilly, with an escapement goal of 6,000 spawners. The average spawning escapement for the past eight years has been about 1,300 chinook.
As for the Nooksack stock, Canadians are expected to catch about 24 percent of the stock, while U.S. fishers only land about 5 percent. The ER goal for restoring the Nooksack stock is 7 percent.
Listed chinook stocks in the Seattle-Tacoma area will also face major harvest restrictions to improve their chances of recovery. The Lake Washington chinook run that returns to the Cedar River is expected to get whacked at about a 36 percent rate this year, split about evenly between U.S. and Canadian fishers. The management goal for that stock calls for only 15 percent (pre-terminal) ER on the U.S. side.
It could be years before the Canadians back off. Future negotiations over southern interceptions are not scheduled until 2008 and the U.S. is running out of bargaining chips. In 1999, the treaty was re-negotiated with the U.S. reducing impacts on Fraser River sockeye in return for reduced Canadian effort on U.S. chinook and coho and a mutual call to improve fish populations by both countries.
But after Puget Sound chinook were listed for ESA protection in 1999, the treaty fishing regimes were still pegged too high to recover the Washington stocks, according to the latest analyses by recovery planners. However, questions still remain about just how accurate the modeling effort is that has guided efforts like the Snohomish plan. The plan itself reports that "NOAA Fisheries recommends using the results with caution, because while an important tool to aid decision-making, they do not provide an absolute answer." -B. R.
[5] Brian Lipscomb Named New CBFWA Director
Brian Lipscomb, a long-time natural resource manager for the Confederated Salish and Kootenai Tribes, will be the next executive director of the Columbia Basin Fish and Wildlife Authority.
Outgoing director Rod Sando said Lipscomb, a tribal member, will bring a unique combination of education and experience to his new position, having been responsible for the Salish and Kootenai participation in the federal hydropower arena. He said Lipscomb also played a key role in negotiating and implementing mitigation programs associated with the operation of Kerr Dam and the contamination of the Upper Clark Fork River Basin.
Lipscomb will leave his present position as member of the tribal lands department and take over the director's spot July 1. CBFWA is made up of fish and wildlife managers from four Northwest states, NMFS, USFWS, and 13 tribes in the Columbia River Basin. -B. R.
[6] Spring Chinook Run Hits 100,000, Shad Count Nears 3 Million
The 2005 upriver Columbia spring chinook run is officially over, and it finished off slightly above the latest estimate by harvest managers, who pegged it a couple of weeks ago at 93,000 fish and reopened the river to sport fishing for hatchery chinook on June 4.
The final tally was a 100,341 fish, a far cry from the managers' pre-season estimate of more than 254,000 springers, but it has climbed back to within about 60 percent of the 10-year average. This year's numbers are somewhat inflated from past counts, since the managers have extended the spring counting season by two weeks.
When it became evident that the run was coming up short, fishing was closed April 24. The return is much less than what was expected, based on last year's jack counts of more then 9,000 fish. This year's 5,000 jacks are about half the 10-year average.
Up at Lower Granite Dam, the trend is similar, with about 25,000 spring chinook counted, about 55 percent of the 10-year average, but the 1,144 jacks are about one-third the 10-year average.
However, the news is better in the upper Columbia, where fish counts are tracking much closer to last year's returns. The 14,000 springers counted at Priest Rapids Dam are only slightly below the 10-year average and slightly above last year's count. This year's jacks are running close to the 10-year average, but are only about half of last year's number. A significant harvest is planned for the non-ESA-listed upper Columbia summer run, but it remains to be seen whether the returns will be high enough to allow it.
The spring chinook run on the Willamette has not approached pre-season expectations, either. About 30,000 chinook have been counted at the falls so far, with 70,000 originally expected for the year. About 88,000 fish were counted by this time last year. At the end of May, managers said it had been tracking at about 60 percent of the pre-season forecast.
Meanwhile, shad numbers at Bonneville are going through the roof with nearly 3 million of this large cousin of the herring family having passed the dam in 2005. The biggest day so far was June 11 when more than 700,000 were counted passing the dam. That's pretty good for an introduced species whose life history is shrouded in mystery and effects on other Columbia River species like salmon are largely unknown. -B. R.
[7] NMFS Announces New ESA Hatchery Policy, Stock Status
The National Marine Fisheries Service announced today that it will list lower Columbia River coho as a threatened species, but all other previously listed stocks on the West Coast will remain under ESA protection for the foreseeable future. The new policy keeps the status of 14 of the 16 listed stocks unchanged from their prior status, but the central California coast coho population was downgraded from threatened to endangered status.
"This policy reinforces our commitment to protect naturally spawning salmon and their ecosystem," said retired Navy Vice Admiral Conrad C. Lautenbacher, Jr., Ph.D., under secretary of Commerce for oceans and atmosphere and NOAA administrator. "A properly managed hatchery program can provide a great boost to natural populations of fish and we intend to use this as a key component of our overall salmon recovery efforts which, along with favorable ocean conditions, have contributed to record returns over the last few years."
The new determinations have added more than 130 hatchery stocks for protection to listed ESUs [Evolutionarily Significant Units] to satisfy a court ruling (Alsea Valley Alliance vs. NMFS) that tossed NMFS' listing of Oregon coastal coho a few years ago because the agency didn't offer the same ESA protection to the hatchery component of the listed ESU as it did to the wild portion. Now NMFS says the hatchery stocks that are similar to wild listed populations will be listed as well, but will be exempt from take restrictions if they have been marked.
The agency said it needs another six months to decide whether the coastal coho should remain listed. A recent study by Oregon state biologists said the stock was healthy. NMFS also said it needs more time to reach a final decision on 10 listed steelhead stocks. At issue, is whether to include the resident steelhead populations, rainbow trout, as part of the steelhead ESUs.
Russell Brooks of the Pacific Legal Foundation, which represented plaintiffs in the Alsea Valley case, has ongoing litigation against NMFS over the rainbow trout issue. He maintains that there is no way for the fisheries service to determine the genetic difference between a seagoing steelhead from resident hatchery rainbow, and when all are counted, no populations should be listed.
He told NW Fishletter that his group will file another lawsuit in a few days to force NMFS to comply with the spirit of the Alsea Valley decision. "It's rocket science only if you're trying to get around what the court said," Brooks said.
NMFS policymakers say that the listing determinations recognize that the long-term health of the fish populations depends on more than just large numbers of fish, but also on productivity, genetic diversity, and geographic distribution.
But Brooks says the agency's admitted focus on the conservation of wild fish and allowable harvest of surplus hatchery fish in that same ESU still violates the Sept. 2001 ruling by Oregon District Court judge Michael Hogan. -B. R.
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