[1] Spill Now, Argue Later, Says Ninth Circuit Court
The 9th U.S. Circuit Court of Appeals rejected a last-minute appeal on June 21 by federal agencies, irrigators and Bonneville Power Administration customers to stop the summer spill program that began just after midnight, June 20. A June 10 order called for spilling at dams where fish are collected for barging downstream, and muted the feds' maximized barging policy in low-flow years.
But the Niners requested briefs from all parties within 10 days to argue the full appeal at a later date. The decision held out hope to some that the court might possibly stop the $65 million spill action before its scheduled Aug. 31 end. Oral arguments are scheduled for July 13 in Seattle.
A brief filed by irrigators said federal Judge James Redden was "impervious" to evidence submitted by federal agencies that salmon survival would be reduced 26 to 48 percent if he granted the environmentalists' injunction to boost spill and thereby reduce the numbers of fish barged. The feds say barging will keep the fall chinook away from potentially lethal conditions in the low-flowing Snake River.
"We have now reached a dark day when even terrorists at Gitmo receive more due process of law from the federal judiciary than those attempting to defend dams from the lies of the environmentalists," said irrigators' attorney James Buchal the morning after the appeals court laid down the law.
In their own filing, federal attorneys said the plaintiffs' brief opposing their stay was "riddled with inaccurate factual generalities" that obscured a correct understanding of the issues.
However, plaintiff environmental and fishing groups said the injunctive spill relief should be granted to reduce harm to fish because the federal plan to barge most fall chinook in low-flow years was included in the "arbitrary and unlawful 2004 BiOp" that Judge Redden had ruled invalid May 26.
They said that even using the "contrived and improper efforts" in the 2004 BiOp to limit accountability for juvenile fish mortality to discretionary dam operations, the feds acknowledged that the harm of 1 to 4 percent of the migrating fall chinook "cannot be dismissed as de minimus under the ESA, and is irreparable."
Plaintiffs also took issue with earlier evidence from the feds that the fall chinook run is rebounding, noting that since 2001, the wild fall run has actually decreased by 50 percent.
However, a footnote in the feds' latest brief points out that such a statement is misleading because the 2001 fall chinook returns were the largest since the 1990s, and "part of the upswing in returns since the 1990s that have been occurring while the Corps has been maximizing transportation at the collector projects."
The feds say that Judge Redden made a fatal omission in his spill opinion because he never explained why spilling at collector dams remedied the alleged harm to fish. The feds noted that the plaintiffs admit the spill order is an "experiment," and point to a quote in the plaintiffs' brief as evidence.
The quote cites a June 14 Fish Passage Center memo that says the new summer spill strategy is a unique opportunity to "provide increased fish survival and to explore the questions regarding summer spill and fish passage that have not been possible to date because of the federal operators reluctance to provide spill."
The plaintiff groups also said it was wrong for the feds to include the potential cost of spill in their arguments as an example of public interest because the ESA does not provide for such considerations "when dealing with actions that will harm species threatened with extinction." They said the pennies a month that BPA customers would save by the federal plan doesn't outweigh the harm to fish.
A reply brief filed by the BPA customer group said the attempt to "trivialize" economic harm from the injunction conflicted with a slew of declarations that testified to the adverse economic impacts from the spill injunction.
Utilities were also ticked off at the state of Oregon for its amicus brief on behalf of the plaintiffs that argued against the feds' claim that the 2004 BiOp is lawful. Oregon has been involved with other Northwest states in discussions with federal agencies over long-term hydro operations, but broke with them during the June 10 spill hearing, when assistant attorney general David Leith said the state didn't believe the feds' barging plan was the best strategy for the fish. Leith said the state had only supported it to stay in the talks over long-term dam operations.
But federal agencies didn't throw in the towel. "This decision allows the injunction that was granted by the District Court to continue while we move forward with our appeal," Bob Lohn, Northwest regional administrator of NOAA Fisheries, said in a June 21 statement. "Our primary concern is that the injunction, which began yesterday, significantly reduces the number of fish transported in barges, leaving a large proportion to migrate under the adverse in-river conditions in this low water year. We are concerned about the prudence of wagering salmon recovery on an experiment instead of relying on proven measures," added Lohn.
Meanwhile, scientists like USFWS researcher Billy Conner say it's likely that most of the juvenile fall chinook in the Snake River have already headed downstream from Lower Granite Dam. Conner said it's been hard to find fish to pit tag lately. "Our catch is way down," he told NW Fishletter.
A 9th Circuit panel will convene July 13 in Seattle to hear oral arguments. The latest briefs filed by both sides repeated earlier arguments made before Judge Redden. The feds say plaintiffs failed to present any evidence that fall chinook would benefit from the added spill, while plaintiffs said the feds portrayed the injunction "as a head-long, unprecedented, and reckless experiment in river management by the district court that poses needless risk to juvenile fall chinook and imposes needless cost on the Bonneville Power Administration."
The latest proceedings have generated some interest beyond the region. Both the state of Nebraska and the National Association of Homebuilders filed amicus briefs on behalf of the federal defendants. Nebraska argued that Judge Redden relied inappropriately on two district court opinions regarding a biological opinion written by USFWS on the Corps of Engineers operation of Missouri River dams and operations and may be overturned by appeal any day. They say the NOAA Fisheries interpretation of the ESA implementing regulations is correct, and if it is struck down, "the conflict in the Missouri Basin will manifest itself nationwide."
The homebuilders association also filed a brief supporting the feds' jeopardy analysis used in the BiOp that Judge Redden had found illegal. "If this court affirms the district court decision and holds that the Service must make a jeopardy determination when it concludes that a federal action will reduce appreciably the likelihood of recovery of a listed species but not the likelihood of survival of that species, hundreds if not thousands of private projects previously approved under the ESA will be invalidated." They said if Redden's interpretation is allowed to stand, it could undermine hundreds of habitat conservation plans adopted by private landowners and local governments over the last 10 years. -Bill Rudolph
[2] Summer Chinook Corralled By Spill Problems At Lower Snake Dam
The court-ordered spill program to aid juvenile fall chinook on the lower Snake was the likely culprit for stalling the adult run that was heading back to Idaho. By the end of last week, the Corps of Engineers had cut spill drastically at Little Goose Dam to help more than 2,000 adult chinook get past the dam and move upstream toward Lower Granite Dam where fish passage seemed to be OK. The change in strategy seemed to be working.
But the new program had problems from the very beginning. Adult fish counts at Little Goose plummeted drastically after the spill program went into effect June 20, from over 400 to only 65 fish. It stayed mostly in double digits until June 29, when spill was cut slightly and adult passage bumped up to 154 adult chinook.
A conversation on June 20 between Corps biologist Rock Peters and the plaintiff groups' lead attorney and his technical consultants resulted in even more spill reductions. Peters estimated that about 2,200 summer chinook were stuck below Little Goose, which is more than half the number that have made it past all four dams since the official summer count began June 18. Fish numbers had also dried up at Lower Granite since the run bottled up. Only 71 adults were counted there on June 29.
The summer migration of adults in the lower Snake is not usually impacted by spill, since spill is stopped altogether at most Snake dams to maximize the collection and barging of juvenile fall chinook. But an injunction won by the plaintiff groups in the hydro BiOp litigation (NWF vs. NMFS) to add summer spill at the dams was upheld in the 9th U.S. Circuit Court of Appeals after they argued that more spill would improve fish survival in this low flow year. Opposing this, the feds had argued that barging was the least risky strategy this year because of lethal water temperatures expected later this summer.
However, the order called for spilling all water in excess of station service at the three collector dams. With summer flows in the 50-kcfs range, spill would range from about 64 to 70 percent of the water passing the dams.
The new program had problems from the very beginning when the spill regime at Lower Monumental Dam created illegally high dissolved gas levels all the way to Ice Harbor, the lowest dam on the Snake. Changes in the spill pattern helped to solve that problem. But gas problems could crop up again later this summer, Peters said, when flows diminish to about half their current levels and air temperatures increase.
Big Bad Back Eddy
Biologists think the fish passage problems at Little Goose were caused by a large back eddy in front of the dam created by the spill. Under normal conditions, the eddy doesn't exist because large flows are coming from the powerhouse at the other end of the project's tailrace to counteract the current created by the spill. But the large eddy, when it exists, creates flows that are directed into the entrance of the adult fish ladder. If this condition exists, biologists say returning adult salmon may lose their sense of upstream direction and miss the ladder.
To remedy the problem, spill at Little Goose was cut to 50 percent of the flow on June 29, which was followed by a tripling of fish numbers to 154. But Corps biologists said that wasn't good enough. After a June 30 consultation between Corps officials, plaintiffs' attorney Todd True, and biologist Bob Heinith and hydrologist Tom Lorz from the Columbia River Inter-Tribal Fish Commission, the strategy was again modified.
They decided to cut spill drastically between 4 a.m. to noon to only 7 kcfs, and to release water from both ends of the spillway, a four-fold reduction from the previous day when overall flows hovered around 60 kfcs. From noon to 8 p.m., spill would then be boosted to 30 percent of flows and after 8 p.m., it would be raised to the court-ordered level.
Corps biologist Peters said if that didn't work to get the fish moving, more drastic measures would have to be taken. The spill reduction last Thursday seemed to have a positive effect; about 1,600 chinook passed the dam that day--ten times the previous day's number.
Corps' spokesman Witt Anderson said about 600 fish passed in one hour alone when spill was reduced to the 30 percent level. He said it seemed to break up the big eddy below the dam and get the fish headed towards the ladder.
Anderson said anecdotal reports even suggested that sports fishermen along the shore suddenly started catching fish when the spill level went down. He said it's likely the Corps will suggest a near-term action of 30 percent spill through the day and ramped up to the gas cap at night.
Anderson said the fish counters at Little Goose reported that the fish looked "pretty beat up" from the days spent milling about below the dam. And NMFS technician Jerry Harmon told NW Fishletter that an ESA-listed sockeye he examined at Lower Granite the previous day looked "pretty ragged around the edges" and showed evidence of seal bites. The five-pound fish still had more than 400 miles to swim to reach its spawning grounds at Redfish Lake. It's only one of four sockeye counted so far in the lower Snake out of 66 expected to enter the mouth of the Columbia this year.
The movement of the fish had fish biologists breathing a bit easier, but they must still agree on future actions. If all parties can't agree on a course of action, the issue will have to be resolved back in federal district court, where Judge James Redden has so far stayed out of the latest scramble over spill.
But federal attorney Fred Disheroon said June 30 that he thought the judge should be informed of the situation "before he reads about it in the papers." Late last Thursday, Earthjustice attorney Todd True sent a "joint report" to Judge Redden that said the parties were cooperating to resolve the adult passage issue and didn't need the court's help "at this time."
Others were not so kind. In fact, Portland attorney James Buchal said defendants should go back to court to have the injunction quashed because it's having an obvious adverse effect on salmon. Buchal, who represented several irrigators associations in the BiOp, said the blocked migration should show the judge how wrong the "so-called experts" who testified on behalf on the plaintiffs were when they argued in support of the summer spill strategy.
"This is another example of the law of unintended consequences," said Shauna McReynolds, deputy director of the Pacific Northwest Utilities Conference Committee. "We've got to leave river operations to the experts. You can't expect to pull one switch without affecting other parts of the river. It's a carefully balanced system."
The high spill rates have been very effective at getting juveniles over the dams, said biologist Peters, but another consequence of that is the relatively small numbers of juvenile fish that are being collected for barging. He estimated that only 10 to 20 percent of the run may be barged from now on if current spill levels continue for the rest of the summer. The court order calls for spill to end Aug. 31.
Environmentalists had argued that their spill proposal would "spread the risk" to the fall chinook migration by putting about half of them in the river. The feds had expected to barge about 95 percent of the run before the judge stepped in. But barging proponents can still take comfort in the fact that the comparatively large juvenile migration seems early this year, which means more than 2.6 million subyearling fall chinook have already been barged out of the Snake this year out of about 2.9 million collected at dams on the Snake. Last year at this time, less than one million young fall chinook had been transported through the hydro system. By the end of the 2004 migration season, about 1.56 million juvenile fall fish had been barged.
Meanwhile the hitch in the adult run seems to have been fixed. Another 800 chinook passed Little Goose on July 1 and 349 more on the following day, before numbers dwindled to just 57 fish on July 5. Since then the count is back in the three-digit range with about 200 summer chinook a day still heading up the Snake from its confluence with the Columbia. -B. R.
[3] Commercial Harvest OK'd For Upper Columbia Summer Chinook
Columbia River non-tribal gillnetters got their first significant crack at the summer chinook run for the first time in 40 years when they hit the water June 27 in the first of three 10-hour fishing periods allowed by harvest managers, who have allotted 3,200 fish for the commercials and an equal number for sports fishermen below Priest Rapids Dam.
With about 2,000 chinook passing Bonneville Dam each day, and most of them headed for the upper Columbia, managers have estimated this year's run at around 62,000 fish (to river mouth). Last year's run was about the same size, and the third largest since 1979. The 2003 summer run was second largest since 1979, and 2002 produced a record 93,000 summer chinook.
The upper Columbia summer chinook run is not listed for protection under the ESA, but inriver fisheries have been severely constrained out of concern for the ESA-listed summer chinook headed for the Snake River. However, harvest managers say adult pit-tag detections at Bonneville Dam show that most of the Snake run will have passed by the end of June and opening the fishery will have little effect on the protected run, an assessment that NMFS agreed with in a recent harvest BiOp.
The managers changed their accounting methodology this year to more effectively separate the Snake spring/summer chinook from the later-running upper Columbia summer run by adding two weeks to the spring counting season.
The fisheries are being managed for an escapement of 29,000 fish to the river mouth. This harvest plan will provide over half of the non-treaty harvest to recreational and tribal fisheries in the upper Columbia, where Wanapum and Colville tribal fishermen set their nets. The two tribes are not parties to the U.S. v. Oregon process that governs lower tribal fishing, so their harvest allocation must come out of the non-tribal share of 15,150 summer chinook. Tribal fisheries below McNary Dam get another 15,150 chinook.
Sports fishermen began their summer chinook season June 16 all the way from near Astoria to Priest Rapids Dam with a later opening that will extend to Chief Joseph dam. -B. R.
[4] Billion-Dollar Salmon Recovery Plan For Puget Sound
The impressive collaboration between local governments, stakeholder groups, tribes and the federal government has unveiled a habitat restoration plan years in the making that is designed to recover Puget Sound salmon stocks. The draft plan covers 14 watersheds and is expected to cost more than a billion dollars over the next 10 years, which would double the current funding of $60 million in annual spending on habitat-related projects.
On June 30, the Shared Strategy's development committee submitted their draft plan to NMFS and the USFWS, in the belief that it will satisfy ESA requirements for regional chinook and bull trout populations listed since 1999. Federal agencies and the public will be able to comment on the plan for the next six months.
"We are proud that the diverse perspectives both on our committee and within watershed planning groups, are reflected in the attached plan to help achieve our vision of meeting the needs of both people and fish," said committee chair William Ruckelshaus in a letter to the federal agencies.
The draft plan has been scientifically reviewed by the Sound's technical recovery team which is responsible for putting the stamp of approval on a plan that satisfies the ESA. But the Puget Sound effort is aiming to recover the stocks to high enough levels to allow for the sustainable harvest of returning salmon by both tribal and non-Indian fishers.
Recovery goals have been developed for each watershed, with the TRT already judging that the chinook will have little risk of extinction if all watersheds show some improvement; at least two to four chinook populations in each of five bio-geographical regions attain a low risk status over the long-term, and if at least one or more populations from major diversity groups present historically in each of the five Puget Sound regions reach a low risk status.
The plan recognizes the importance of keeping harvest rates low, especially on wild stocks, while rebuilding habitat, and it points to significant reductions by Puget Sound fishers, but it downplays the increased catch by Canadians in recent years. It says the salmon treaty that regulates salmon catches between the two nations will be open in 2008 for re-negotiation.
The region's hatcheries have undergone an extensive review and are being re-tooled so hatchery stocks have less adverse impacts on wild fish, while allowing for more harvest. Fishing effort has been reduced as well, but some important stocks from several key watersheds in the Sound are still hammered by ocean commercial and sports fisheries.
According to WDFW's harvest model, about 40 percent of the Skagit summer/fall chinook are caught before they return to their home river, with about three-fourths of them hooked before they return to Washington waters. Nooksack chinook are estimated to be harvested at a 30 percent rate, with less than 6 percent caught by US fishers. More than one-third of all Lake Washington chinook are still getting caught, about half by Washington fishers. And the famous Elwha chinook stock, whose home river is the scene of a huge project to demolish two ancient hydro projects, are caught at a 24-percent clip, but only 5 percent are hooked below the US/Canada border.
Somehow, the optimistic plan figures that Puget Sound chinook numbers could double over the next 10 years to about 76,000 fish, and possibly achieve 80 percent of historical numbers in the next 50 years. But who knows how many people will be living in the Puget Sound region by then? Another million folks are expected in just the next 15 years.
According to NMFS' own data, the sound's chinook population has ranged between 17,000 and 62,000 since the early 1980s, about evenly split between wild and hatchery fish. Other WDFW data from the late 1960s estimated Puget Sound wild chinook spawners at 32,000 back then (several thousand less than the 2003 return), with about twice as many fish returning to hatcheries. In those days, harvest rates were high, with Canadian sports and commercial fishermen estimated to catch more than 300,000 Puget Sound chinook a year, about twice the number caught by US sports, commercial and tribal fishers.
The Puget Sound planners say the next 10 years will be crucial to get a reasonable start to the recovery process. But faced with shrinking federal dollars to help out, the plan calls for exploring "alternative sources or change the scope or pace of recovery plan implementation." However, the anticipated pace of recovery is likely to slow down if fiscal constraints make it necessary for policy makers to prioritize recovery actions between watersheds. Business interests involved in the effort say they will weigh in soon with their comments on the plan, said Kay Gabriel, manager of government affairs for the Weyerhaeuser Co. -B. R.
[5] Energy Bill Language Cuts Funding For Fish Passage Center
Language added to the U.S. Senate's Energy and Water appropriations bill calls for an end to annual funding of the controversial Fish Passage Center by the Bonneville Power Administration. The language was added by the Subcommittee for Energy and Water Development, where senators from Montana, Idaho and Washington sit.
The FPC gets about $1.3 million annually from BPA. Its main tasks are to provide the fishery agencies and tribes with technical expertise, to run the smolt monitoring program at federal dams, and to provide data for fish passage management decisions. But critics have long complained about the FPC's advocacy role for spill and flow augmentation and lack of accountability.
The markup language cites concern over the increasing cost of salmon recovery efforts in the Columbia River Basin and the "quality and efficiency of some of the fish data collection efforts and analyses being performed."
The bill's language says other entities could take on the database functions. "The Committee understands that there are universities in the Pacific Northwest that already collect fish data for the region and are well-positioned to take on the responsibilities now being performed by the Fish Passage Center, and that the universities can carry out those responsibilities at a savings to the region's ratepayers that fund these programs."
That's shorthand for the University of Washington, whose Columbia Basin Research group maintains the DART Web site that keeps track of daily fish counts, flows, and water quality throughout the hydro system, along with an extensive database, chiefly funded by BPA.
Dan Whiting, spokesman for Sen. Larry Craig (R-Idaho), said in light of Judge Redden's recent spill decision, which could cost $65 million or more to implement, the language was added because it's necessary to make some cost-cutting decisions and tighten the belt of BPA's fish and wildlife spending. He said the proposal to end BPA's funding of the FPC stood a good chance of surviving the budget process. So far, it has survived a full Senate vote. The appropriations bill will likely be finalized after conference committee sessions with the House and signed into law this fall.
Supporters of the Fish Passage Center were marshalling for a counterattack. The language to de-fund the agency had been posted on the Columbia Fish and Wildlife Authority's Web site, and the four lower Columbia tribes met June 22 with federal agencies. Charles Hudson, spokesman for the Columbia River Inter-Tribal Fish Commission said the tribes got a disjointed response. He said BPA didn't seem to hold the issue in very high regard, but both the Corps of Engineers and NOAA Fisheries were interested in keeping the FPC funding in place. Hudson said the tribes are firm in their stand to keep the funding.
Hudson said environmental groups were expressing their concerns with Patty Murray's (D-Wash) staff about the language to cut off the FPC budget. Murray and Senator Conrad Burns (R- Mont.) also sit on the subcommittee.
The Fish Passage Center was under scrutiny last year by the Northwest Power and Conservation Council, after the agency requested a within-year budget increase. Several council members used the squabble to call for a review of the region's fish and wildlife databases to reduce redundancy and save ratepayer money. The Council authorized $10,000 to spend on an independent review of the database management systems of the FPC, Columbia Basin Research and the Pacific States Marine Fish Commission's StreamNet project.
At the time, then-Council Chair Judi Danielson said most Northwest state fish agencies and some tribal entities sent letters supporting the FPC budget request. "They're all pretty much the same, they all contain misinformation, accusations, veiled threats, and a number of things like that." But she said they raised "red flags" in her mind, and left the council "a little more committed to find out what the deal is when it comes to the budget." But no review was ever completed, though the independent panel that reviews F&W proposals gave the FPC a green light for funding at its last review in 2003.
In 2002, after earlier concern over the advocacy role played by the FPC in the region, an oversight board was established. But critics say the agency is still out of control and point to its continuing support of higher flows and more spill for fish passage in the Columbia and Snake rivers. A June 14 FPC memo that supported the recent boost in summer spill was cited by BiOp plaintiffs in their brief to the 9th U.S. Court of Appeals, where the federal government and BPA customers had requested a stay of the spill order.
In early 2003, comments from the Pacific Northwest Generating Cooperative on amendments to the region's fish and wildlife program said many BPA customers felt that funding the FPC was "a less than prudent expenditure of ratepayer dollars." The PNGC said the handling of regional fish data was too important to remain in an agency that continues to advocate for state fishery interests. "If the FPC is to act as an arm of local fish agencies," said Scott Corwin, vice president of PNGC Power, "then it should be funded by those entities."
The battle is just heating up. PNGC Power President and CEO Pat Reiten just sent a letter to BPA saying the agency should not saddle ratepayers with the 4 to 5 percent rate boost that's likely to occur from the spill action, but should cut costs internally, with the "bulk" of the cuts coming out of the fish and wildlife program. -B. R.
[6] Idaho Comes Up With BiOp Water After All
Late spring rains on the Snake River plain have helped the state of Idaho come up with all 427,000 acre-feet of water called for in the hydro BiOp to augment flows for ESA-listed fish populations.
"Unusual spring weather was a big help, but meeting this objective is still a significant achievement, considering the drought," said Bill McDonald, regional director of the Bureau of Reclamation in a June 22 press release.
The 427,000 AF target is also part of the Nez Perce water rights settlement and is achieved on a "willing seller and lessor" basis. The settlement has also opened up new sources of water for flow augmentation, allowing BuRec to rent or acquire 60,000 AF of water associated with high lift pump lands, along with the possibility of using more water from behind Palisades Dam as a last resort. -B. R.
[7] Niners Uphold Ruling On Pesticides Near Salmon Streams
The Ninth Circuit Court has upheld a 2002 ruling (Washington Toxics Coalition v. EPA) from the Seattle District Court that restricted the use of 38 pesticides near salmon-bearing streams in the Northwest. The June 29 decision also upheld the requirement that calls for warnings about possible adverse effects on fish to be posted where the pesticides are for sale.
"These are clearly pesticides that pollute our streams and poison salmon," said Earthjustice attorney Amy Williams-Derry, in a press release. The ruling will keep 100 yard no-spray zones near streams for aerial application and 20-yard buffers for ground application, with few exceptions.
The ruling had been appealed by EPA and intervenors, which included agricultural and forestry groups and business groups associated with the pesticide and fertilizer industries. -B. R.
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