[1] Niners Uphold Spill Injunction
A three-judge panel from the 9th U.S. Circuit Court of Appeals has upheld a ruling from a federal District Court in Oregon that added two months of spill to summer operations at five federal dams in order to improve fish survival. The panel, which heard oral arguments in Seattle July 13 filed its opinion July 26, saying that Judge James Redden did not abuse his discretion by granting the injunction, nor did he base his decision on an erroneous legal standard or erroneous findings of fact. Those were the only two reasons upon which it would reverse, the panel said.
Though federal agencies argued that the added spill would likely kill up to 50 percent more of the juvenile fall chinook than would die from the agencies' preferred barging strategy, the panel said conflicting evidence about the spill strategy didn't imply that the judge had made a mistake in supporting it.
Plaintiff attorneys pointed out that even the National Marine Fisheries Service had admitted it wasn't sure if barging was better than leaving the fish inriver, and that the agency generally supported spill as the safest way to move fish past dams. But federal officials said they didn't know enough about fall chinook to come to that conclusion.
The officials had said barging the summer migrants would protect them from lethal summer temperatures in this low flow year. But plaintiffs argued that status quo operations weren't enough to protect the Snake fall chinook, and had also called for flow augmentation and reservoir drawdowns to speed inriver migration by 10 percent. Judge Redden granted only the spill side of their request, agreeing with plaintiffs that the stock was not showing real signs of recovery, another point hotly debated by federal attorneys.
But the Appeals Court said its job wasn't to weigh the evidence presented in District Court, only to decide whether the judge had abused his discretion.
The judicial panel cited a 1998 case, saying that as long as findings "are plausible in light of the record viewed in its entirety, a reviewing court may not reverse even if convinced it would have reached a different result." The panel said that when the record was viewed as a whole, they couldn't say that Redden's ruling "concerning irreparable harm was clearly erroneous."
As for the feds' argument that its expertise should be deferred to, the panel said there was no formal agency finding to which it might be owed, since the officials argued their case through expert affidavits. The panel pointed out that Judge Redden had already rejected the main premise of the government's methodology and the 2004 Biological Opinion.
The panel also said the government was wrong to argue that Redden had not allowed for a traditional preliminary injunction analysis or weighed the economic harm from the spill strategy, which the Bonneville Power Administration estimated would cost at least $67 million. The Ninth Circuit said the Supreme Court has ruled such an analysis does not apply to the Endangered Species Act and that Congress intended the ESA to balance in favor of endangered species.
But the judges conceded a point made by Justice Department attorneys and the BPA customers group that the spill injunction was too broad, citing modifications already made to the spill strategy to improve adult migration at Little Goose Dam. The customers argued that the order inadequately spelled out the remedy for the alleged ESA violation. The panel said this issue should also be considered and remanded the injunction back to the District Court.
BPA says the added spill from June 25 to July 25 cost $35.8 million and that, combined with increasing power rates, was likely to raise the agency's earlier estimate that the injunction would cost $67 million through the end of August.
"It's a disappointing decision," said PNGC vice president Scott Corwin, "especially in light of the serious questions about the science in Judge Redden's order."
Environmental groups were ecstatic about the ruling. A July 27 Earthjustice press release said the legal battle was part of an "overall effort to breach the four lower Snake dams and restore salmon abundance throughout the Northwest." Environmentalists trotted out fishing guide Bob Rees, from the NW Guides and Anglers Association, who said people need to realize that every salmon caught by a recreational or commercial fisherman provided a $200 cash infusion in the regional economy.
But pessimists were pencilling out the costs of adding more fish through the new spill effort. Even if environmental groups were correct in their assertion that the implemented spill and flow augmentation (not implemented by the court) would improve fish survival by 50 percent, only about 500 chinook might be added to the returning adult run from the numbers of smolts that have migrated since summer spill started, at a cost of $300,000 for every fall chinook that makes it back to Lower Granite Dam as an adult. About half of the Snake fall run is harvested by ocean and inriver mixed stock fisheries before the fish reach Idaho.
By Aug. 3, the University of Washington had estimated that 97 percent (plus or minus 6 percent) of the wild pit-tagged fall chinook had passed the dam. Less than 1,000 smolts a day are passing Lower Granite at this time. Before the spill started, about 3 million juveniles had passed the dam; since then less than 300,000 smolts have gone by.
By late last week, representatives of all sides in the spill fight and earlier BiOp litigation, along with the four Northwest states, tribes and utilities, had concluded a two-day meeting in Spokane to discuss a plan for operating the dams for the next 10 years.
The plan calls for dedicating the savings from using removable spillway weirs at dams to pay for more fish improvements. The weirs, now under development, may improve fish survival while spilling less water.
"The court has spoken and we are complying," said Steve Wright, BPA administrator. "But it makes our work with the four Northwest states and other parties on an agreement for hydro operations and fish protection all the more important." -Bill Rudolph
[2] Niners' Panel Hears Spill Appeal In Seattle
Bonneville Power Administration customers marched out of a Seattle courtroom July 13 in glum moods after a three-judge panel from the 9th U.S. Circuit Court of Appeals heard arguments in the government's attempt to overturn a court order to spill $67-million worth of water over lower Snake River dams for the rest of the summer.
"I think we've got a 25 percent chance of getting it overturned," said John Saven, executive director of Northwest Requirements Utilities, an intervenor in the litigation as a member of the BPA customers group. Bob Lohn, regional administrator at NMFS, said he was encouraged by the panel's pertinent questioning and its sense of urgency to get to a decision soon.
Arguing before the panel, federal attorney Ellen Durkee called federal District Court Judge James Redden's order an "abuse of discretion" because it was accompanied by "no meaningful analysis" to show any benefits from the spill strategy, which puts far fewer migrating juvenile salmon in barges, the federal agencies' preferred strategy.
Durkee tried to explain that the "spread-the-risk" strategy used by the feds--splitting juvenile spring chinook between barges and inriver migration routes more evenly--doesn't mean the feds think it was the best thing to do for fall chinook.
She said while there is little survival data for fall chinook compared with spring chinook, the feds still prefer to barge the fall fish because returns are up and the strategy has been used for years with no major fish disasters. Durkee told the panel that Judge Redden should have deferred to NMFS' judgment.
Attorney Sam Kalen, arguing for the BPA customers, said Redden's June 10 order called for a new "undefined obligation," but didn't explain what that obligation was or how it was generated from the Administrative Procedures Act or the Endangered Species Act. Nor did Redden explain whether the feds had committed a procedural or a substantive violation of the ESA.
There was some questioning by the Niners panel about whether the jeopardy analysis used by the feds was now invalid, since Redden had ruled the 2004 BiOp illegal last May.
Judge A. Wallace Tashima asked Earthjustice attorney Todd True, who represented plaintiff environmental and fishing groups, how "you go forward" without a jeopardy analysis. Tashima noted that few fish were now getting transported--less than 10 percent, according to defendants. Another panel member noted that the agencies said transportation was good enough, but recent declarations by plaintiffs said it wasn't. How did that jibe with the district court's feeling that the risk should be spread between the different migration strategies?
True said that by the end of the season, about half the fish would be barged, and the other half would have passed inriver, since an early migration has meant one-half of the run has already passed the dams in question.
The "expert" state fish managers say the very same spread-the-risk policy used in the spring is needed for fall chinook, True said.
Judge Tashima said there was a basic contradiction in the record over whether spill resulted in higher fish survival than being transported. Why shouldn't the agencies, which say barging is just as good as inriver migration, if not better, be deferred to, the judge asked.
True said the district court was "balancing" the evidence, and the agencies shouldn't receive deference because the government had "its thumb on the scales--twice."
Judge Sidney Thomas noted that it was an unusual situation, involving as it did plaintiff declarations without any evidence to show the benefit of the spill strategy. True argued that much of the evidence weighed by Redden came from the federal agencies themselves. He characterized the government's strategy as citing the high return rates of recent years as an excuse to say "we don't want to rock the boat." But the court said the fish returns aren't that good, said True, who added that Redden also used a science advisor to help him.
He said there was no reason that declarations from plaintiff experts like retired USFWS biologist Fred Olney should receive less deference than those from government agencies.
True said rather than being a "grand experiment," as portrayed by defendants, the added summer spill is what the states and other agencies have been requesting for years. It wasn't used before, True said, because the government stalled with excuses, first using the instability of the electric grid, then that fact that removable spillway weirs haven't yet been installed at all the dams.
Federal attorney Durkee responded by noting that the previous BiOps all had the same summer operations in mind, so changing them now because the current jeopardy analysis may be invalid is no excuse. She also noted that a true spread-the-risk policy doesn't just balance across the season as True said, but every day of the fishes' migration should include the policy.
Panel Judge Richard Paez asked the feds why they hadn't sought vacating the injunction right away, if it harmed the fish. Durkee explained, in response to another question by Paez, that federal agencies had started a logical sequence of research on fall chinook in 1999 that called for three weeks of spill this summer at two dams as part of ongoing research. However, other issues, like increasing water temperatures in the summer, have hindered progress.
With fall chinook populations trending dramatically upward since 1995, Durkee said government agencies have stuck with the barging strategy since there have been no big disasters in the meantime. She said the science behind the population trends is not bad, as portrayed by True. "The fish deserve more than they are getting out of this process," she said. -B. R.
[3] Court-Ordered Spill Constrains Emergency Protocols
Earlier this week, federal authorities said the court-ordered spill program at lower Snake and McNary dams would not be curtailed to help BPA deal with a potential power emergency in the next few weeks, unless Judge James Redden OK'd the move. However, a few days later, they seemed to be changing their minds.
Corps of Engineers' spokesman Dave Ponganis told NW Fishletter that BPA was working on a declaration to put before the judge that would add a proposal to cut the court-ordered spill if a serious power emergency takes place, after conferring with plaintiff environmental and fishing groups about the issue. A June 26 ruling by a three-judge panel from the Ninth Circuit Court upheld the spill order (which will end Aug. 31), but remanded the order back to Redden's court for "tailoring."
A potential shortage on July 18 had power schedulers scrambling to find power, but the Corps kept spilling at lower Snake and McNary dams. Ponganis said Justice Department attorneys had advised the Corps that Redden's order trumped any emergency plan designed to solve short-term power problems. Luckily, BPA was able to secure enough power to make up the shortfall, paying nearly twice the rate it had sold power for earlier that morning.
The emergency procedures are getting revised and updated, said BPA staffer John Wellschlager, who represents the agency at the TMT level. He said the spill ruling has put serious constraints on the ability of the hydro system to meet real-time shortages that could occur from such things as a lightning strike on a transmission line. He said over the past 10 summers, BPA's transmission lines have taken 11,000 lightning strikes.
Wellschlager indicated that reducing spill at McNary and the Snake dams would be on the list of possible emergency actions.
BPA program analyst Suzanne Cooper said the Ninth Circuit Court's remand has given federal agencies, including the Justice Department, the opportunity to lay out standard procedures and re-assess the spill order.
"We need to operate responsibly," Cooper said. She said the July 18 power shortage was discussed with plaintiffs in the spill litigation, who were told that the region was nowhere near a blackout. It has provided a chance to discuss how actions should be prioritized to remedy power shortages, she said, noting that fish managers had produced a list of their own, which included outdated actions like cutting power to non-firm customers. Cooper said BPA no longer has any customers with non-firm loads, such as aluminum companies, whose previous contracts allowed for reducing power to their facilities in case of emergencies.
Cooper said the updated emergency protocols will soon be completed and then shared with plaintiffs and the TMT. She said reducing the court-ordered spill would be on the list, but realistically, it would be "one of the last places to go" to generate more power.
A tentative list of operational changes available for a system emergency shows that some actions like ending BiOp spill at Bonneville Dam could add 200 MW during an emergency. Another 225 to 450 MW could be picked up from ending BiOp spill at John Day. Spill at both those dams is not part of the court order.
Another series of measures in the July 25 document were listed under the heading "Coordination with court required to use these steps." Reducing spill at McNary to 20 kcfs could add more than 700 MW, and ending spill at the four lower Snake dams could free up another 560 to 1120 MW.
John Fazio, power analyst with the Northwest Power and Conservation Council, estimated the hydro system could produce 1,500 MW for 2 hours on short notice by ending summer spill at the dams where it now occurs. He pointed to a recent council analysis that estimated summer spill at the Snake dams, along with other factors, could actually contribute to an electrical shortage in the Northwest, even with an overall regional surplus of 1,200 MW or more. However, the probability of such a shortage is still extremely small, rising to 4 percent from zero before the court-ordered spill began. Fazio estimated the Snake and McNary spill had reduced the 5 percent cushion of potential hydro generation that is generally accepted as an adequate reliability factor by about 20 percent.
Fazio said the Council sent a list of questions to BPA regarding the July 18 episode and expects some answers at their Council meeting next week in Missoula. -B. R.
[4] Northwest Lawmakers Rally Behind Fish Passage Center
Eight Northwest Democratic members of Congress have called for removal of language in a spending bill that would stop funding for the Portland-based Fish Passage Center. The language was added by Idaho Senator Larry Craig (R), who said the FPC's data gathering duplicates work done by other agencies. He said most of FPC's job could be transferred to the University of Washington's Columbia Basin Research group, which already runs the DART data bank that tracks juvenile and adult fish passage.
Conspicuous by his absence of support for the FPC is Washington Democrat Norm Dicks, who serves on the House Appropriations Committee. Dicks could play a key role in the matter when the Energy and Water appropriations bill is finalized after the August recess. Dicks' office did not return calls by press time.
In a letter to the House Subcommittee on Energy and Water, the eight Northwest politicians say the $1.3 million budget for the FPC should be maintained because the center provides federal, state and tribal agencies valuable information "on what works and what does not work, to recover salmon." They said elimination of the FPC could actually increase salmon recovery costs by adding staff at other agencies "to replace the unique services provided by the center."
Critics of the FPC have long complained that some of its analyses tilt toward unproven flow/survival relationships for fish passage. They cite its skewed analysis of survival data, especially during the 2001 drought year. Newer FPC analysis was used by environmental and fishing groups in their litigation that resulted in more summer spill for the juvenile fall chinook migration.
In an op-ed column in the Idaho Statesman, Craig said "government officials like Bob Lohn, [Northwest regional administrator of NOAA Fisheries], disagree with the FPC's controversial assertions about salmon recovery."
The pro-FPC letter was signed by Washington Congressmen Adam Smith, who circulated it, Jim McDermott, Brian Baird, and Rick Larsen, along with Oregon Democrats, Earl Blumenauer, David Wu and Darlene Hooley.
The FPC also has the support of the governors of Washington and Oregon, along with a broad coalition of environmental groups.
The FPC debate has generated a fair amount of heat. One DC-based lobbyist reported that the conflict has generated the most offensive and personal lobbying she had seen in the past 30 years. -B. R.
[5] Some Northwest Salmon Runs Fizzle, Others OK
Poor ocean conditions are getting more blame than dams as more Northwest salmon runs are showing up far short of expectations.
The first case in point--the early sockeye run on B.C.'s famous and undammed Fraser River--was originally estimated from fry abundance to come in around 260,000 fish, but showed so poorly by early July that Canadian biologists downgraded it to a mere 35,000 fish.
A July 15 press release from the Pacific Salmon Commission said "the cause of this very low return is presently unknown; however, adverse marine survival conditions may have persisted through a portion of their marine residence period."
Since then, more sockeye have appeared in test fishing and the run has been bumped back up to better than half (185,000) of the preseason estimate. But the commission said the late run and the fact that fewer sockeye are diverting around Vancouver Island than they had anticipated, is making accurate estimates difficult.
As for the spring chinook returns to the Fraser, Pacific Salmon Commission biologist Mike LaPointe told NW Fishletter that test fishing has pointed to the lowest numbers in 25 years, about 20 percent of average.
Further south, the sockeye appear to be mainly no-shows. Lake Washington's urban sockeye run, which travels through metropolitan Seattle on its way to the Cedar River at the south end of the lake, has been a dismal failure this year. By July 26, only 67,000 fish had been counted at the Ballard locks, about 300,000 less than last year's count at this time. State and tribal biologists had expected about 400,000 to show this year. They blame a hot ocean and predators for the big decline.
A report issued by Canada's Department of Fisheries and Oceans attributed the summer warming to "abnormal weather in British Columbia and the Gulf of Alaska, as well as to general warming of the global lands and oceans."
Jumbo flying squid showed up off Vancouver Island last fall.
(Courtesy of DFO)
It went on to say that "Other findings showed global land and ocean temperatures were near a record high in 2004. This same weather in B.C. brought record high temperatures to the Fraser River, which was a contributing factor to the low sockeye spawning numbers observed in 2004."
The report also catalogued some recent changes.
Low-oxygen waters at 200 meters depth or more crept toward the B.C. coast from mid-Gulf of Alaska.
Hake were sighted in Dixon Entrance, at the International Boundary between Alaska and Canada, much farther north than in 2003.
Southern species of zooplankton increased in abundance and dominant northern oceanic zooplankton species bloomed earlier in spring.
Cold water species such as shrimp declined in numbers off Vancouver Island.
For the first time, an exotic (Atlantic origin) zooplankton species Acartia tonsa successfully invaded B.C. waters on the open continental shelf.
Many jumbo squid were observed in B.C. and Alaska, a first for this warm water species.
Herring presented a mixed response to warming.
The news was better in the Columbia River, after a spring chinook run showed up about one-third the size that harvest biologists had anticipated. The basin's upper Columbia sockeye were tracking close to preseason expectations of around 70,000 fish. By July 26, more than 72,000 had been counted at Bonneville Dam. Tribal fishers caught about 3,000 of them, along with close to 8,000 summer chinook--another run that was coming in close to predictions.
Harvest managers were relieved that the summer runs were tracking better than the springers in their models, but they had few answers to the poor showing of spring chinook. Some other runs seemed adversely affected by ocean conditions as well. By July 25, about 35,000 chinook had been counted at Oregon's Willamette Falls, about half of what was estimated preseason for the Willamette River run.
Hatchery returns for spring chinook also were down considerably. Bill Thorson, who manages the Carson National Fish Hatchery, just upriver of Bonneville Dam, said the hatchery was close to its projected egg take, with 1,140 fish returning so far. Thorson said another 1,200 hatchery chinook had been landed in the nearby Wind River sport fishery, and about 400 more were caught by tribal fishers. But the return to the hatchery is far below recent years, when 8,000 to 12,000 fish showed up.
The 2005 return is close to 1998 numbers, when only 0.36 percent of the outmigrants returned. When numbers began to shoot up in 2000, the managers estimated the smolt-to-adult return rate had nearly quadrupled. And it went up from there. A Fish Passage Center study on hatchery fish survival has estimated that 3.2 percent of the 1999 outmigration from Carson returned to Bonneville Dam. This is less than the 3.5 percent SAR for the barged McCall hatchery fish from Idaho, which must swim about 250 miles farther upstream and pass seven more dams before they are counted.
National Marine Fisheries Service scientists sent a memo in late May to regional NMFS administrator Bob Lohn that speculated on the poor showing of spring chinook in the Columbia River. They said less plankton, more fish predators and warmer water had created a less favorable near-ocean environment for salmon in 2003 than the previous four to five years, but not bad enough for them to expect the extremely low survivals in 2005.
"It remains possible that the low returns this year resulted from significant mortality in an area of the ocean that we are currently not evaluating," they said, noting that they don't know where the upper Columbia springers feed in the ocean.
But they did report that several important indicators of ocean conditions had switched to a negative direction from the previous few years when spring chinook returns jumped an order of magnitude. These signals included the Aleutian Low Pressure Index, which showed its second largest value in the past 45 years.
Better news on the river's fall chinook may be coming soon. These fish spend much of their ocean lives in places known to biologists and show up in fisheries from Alaska to Oregon, as do the summer chinook from the upper Columbia, which have returned at numbers close to estimates.
Regional harvest managers have pegged the Columbia fall run at 671,000 fish, down from last year's 799,000 fish. Nearly 500,000 of them are estimated to be headed above Bonneville Dam, with the upriver bright component aiming for the Hanford Reach expected to be the fourth largest return since 1964. -B. R.
[6] Council Gets Schooled In Current Harvest Policies
A panel of independent scientists told the Northwest Power and Conservation Council last month that it can't really tell if the harvest of ESA-listed stocks is being adequately managed both in the ocean and inriver fisheries.
The panel said that current practice doesn't include tracking listed fish abundance levels, nor allow for major uncertainties in data and modeling efforts, which are likely to fail when ocean conditions change and productivity levels suddenly shift.
The scientists also implied that in the face of these uncertainties and a lack of clear objectives, it may not be enough to recover fish by simply reducing harvest rates by about 30 percent on such stocks as Snake fall chinook, as feds have done.
These conclusions came during a daylong presentation hosted by the Council on Columbia River harvest issues.
Canadian fisheries biologist Brian Riddell, a member of the Independent Scientific Advisory Board, told council members that only the most productive salmon runs could be harvested at rates around 60 percent. "Salmon are not a highly fecund fish," Riddell said. "They go through hundreds of fisheries."
Ocean harvest is now regulated according to fish abundance, he said, rather than managed for a ceiling. But with ocean exploitation rates of Columbia River fall chinook, including the listed Snake component, at about 45 percent, and inriver harvest rates in the 30-percent range, Riddell and fellow panel member Gary Morishima said there is enough uncertainty about mortalities throughout salmon life stages that the margin for error is small. Models have limited data upon which to base harvest estimates, they said, which further complicates the issue.
And now that many hatchery fish are marked by a clipped fin, like fish sporting a coded wire tag, the whole database developed by the tag technology to track catches in mixed stock fisheries is less robust than before, said Morishima. That's because the clipped hatchery fish sustain a higher harvest rate. Many sport fisheries allow only chinook with clipped fins to be kept, in order to let more wild fish spawn.
The historical record of fish survival data is "not stable," the panel said, because ocean conditions are highly variable. Fish numbers can vary "a hundred-fold" from one brood-year to another. The upshot is that large errors in predicting run sizes can occur if environmental conditions have changed and harvest models have not.
The panel said it is impressed with the management processes that have been developed and the effort to expand the scientific basis for salmon recovery efforts. But in a newly released report they say "they remain, however, concerned about the conservation of naturally produced salmonids and the relative affect of harvest on their conservation." The report was requested by the Council, the Columbia River Inter-Tribal Fish Commission and NMFS.
The panel looked at harvest levels of several stocks, including the Hanford Reach upriver brights, trying to answer a question posed by the report sponsors, who asked if current harvest management does an adequate job of managing and protecting ESA-listed stocks.
The scientists said this question can't be answered until real recovery objectives are established and essential components of each listed ESU are pinned down.
Federal policy has cut harvest levels about 30 percent from earlier levels, but without clear goals in mind for returning listed fish, there is no way of knowing if harvest levels are too high. Canadian Riddell said reducing harvest levels could significantly reduce the levels of risk to listed runs like the Snake River fall chinook, which are caught at the same time as the healthy Hanford run.
The science panel presented a series of recommendations, and called for a core set of data that monitors abundance and trends over time. The effort should include documented assessments that can be peer-reviewed, and more recognition for the uncertainty in their data and processes, along with a renewed call for adaptive management to salmon recovery.
The Council was also told that most of the Canadian fishery catches in the 2003-2004 season were U.S. salmon. This finding was reported during a discussion, by regional managers who co-chair the chinook technical committee of the Pacific Salmon Commission, of how harvest rates are set for ocean fisheries in Alaska, B.C. and offshore Washington.
Using in-season DNA testing, a cutting edge management tool used by Canadians to determine the stock composition of their commercial troll fishery off Vancouver Island, the results for the 2003-04 season showed that the Canadian fishery catch was about 88 percent U.S. salmon. About half of that was made up of fall chinook stocks from the lower Columbia, while another 19 percent were bound for Puget Sound.
The Snake fall chinook made up about 1.5 percent of the Vancouver Island catch, or 2,500 individuals, but that's about 21 percent of the number of Snake falls that made it over Lower Granite Dam by the end of 2003.
An independent economics panel summarized the value of Columbia River fisheries to the Northwest. Depending on the amount of fish produced by hatcheries, the economists pegged the value between $40 million and $142 million annually. They estimated the value of a spring chinook caught in the early gillnet fishery at $108 per fish and a fall chinook caught by a recreational fisher during the summer at $90 per fish. They said commercial fisheries accounted for nearly 60 percent of the high-end value of $142 million. Although a small part of the regional economy, they noted that it was very important to some local communities.
Public comment on the presentations found most commenters supporting cuts in harvest rates. The Independent Scientific Advisory Board got kudos from Native Fish Society director Bill Bakke for raising the issue of escapement goals for listed fish.
Providing some perspective, Portland attorney James Buchal reminded the Council that in 2001, a NMFS panel of nationally known scientists interviewed harvest managers for several days but couldn't figure out how the managers justified their harvest rates because their decisions didn't make "scientific common sense." -B. R.
[7] Flow Proposal Gets Nixed For Second Time
A proposal by the state of Montana to flatten flows out of two of its large reservoirs has been nixed for the second year in a row by regional policy makers who run the Columbia River.
This year's proposal called for reducing July and August flows from Montana that add water for migrating ESA-listed salmon in the Columbia River, to allow for higher releases in September. Montana officials want more stable summer flows to benefit resident fish populations, including ESA-listed bull trout.
Armed with the findings of an independent science panel that looked at the Montana proposal last year, consultant Jim Litchfield, representing the state, presented the finalized operational request at the July 6 meeting of the technical management team that governs weekly river operations. At a seminar hosted by the Northwest Power and Conservation Council last fall, the Independent Scientific Advisory Board had concluded that any decrease in Columbia River flows from the Montana proposal would not likely be measurable, and survival differences to juvenile fish from the operational changes would likely be "indiscernible." (See NW Fishletter 190)
In addition, the Montana request said experiments were designed and ready to begin the evaluation of biological changes from stabilizing flows. Both the Kootenai and Salish Kootenai tribes supported the Montana proposal.
But a competing operations request from Columbia Basin salmon managers called for maintaining BiOp flows through the end of August. Without citing any particular survival research, the managers said the reservoirs' draft through August would benefit both listed and unlisted fall chinook.
Both proposals were discussed at the July 6 TMT meeting. NMFS representative Paul Wagner said his agency couldn't support the Montana proposal from a policy perspective because it wasn't likely the preference of plaintiffs in the BiOp litigation, since it went outside the base operations outlined in the BiOp. Without consensus from TMT members, NMFS could not support Montana, Wagner said.
BPA agreed with NMFS, and the Bureau of Reclamation said it couldn't support the proposal without NMFS signing off on it.
Wagner said the NMFS passage model found a slight decrease in fish survival with the Montana flow proposal, about 2 percent, but an increase in fish survival in September, with a slight increase in water temperatures at McNary--a tenth of a degree.
Idaho representative Russ Kiefer said his state couldn't support the SOR because he hadn't seen any information that showed resident fish would get enough benefit to justify adverse impacts to salmon. Oregon remained neutral, but USFWS representative Dave Wills said he wasn't convinced, and the Columbia River Inter-Tribal Fish Commission opposed Montana's plan.
Without consensus, the state elevated the issue to the Implementation Team where policy decisions are handled, but looped back to the TMT the following week where the Corps of Engineers offered two alternative operations that could ramp down flows to improve habitat conditions over the BiOp action, but still be legal. Most members supported the first alternative that ramped down flows in fewer steps, which was expected to have less effect on an ongoing nutrient study by the Kootenai tribe. But Montana stuck to its guns and stayed with its own original proposal. Without consensus, the issue went up to the IT again.
On July 21, Litchfield made his last pitch, noting the proposal to flatten flows had been something the state had been working on for 10 years. But USFWS representative Howard Schaller said both his agency and CRITFC had analyzed flow projections and had concluded that BiOp actions should be maintained for 2005.
However, Bruce Measure, one of the Montana members of the Northwest Power and Conservation Council, told the group that other USFWS policymakers he had discussed the issue with couldn't point to any benefits for salmon from maintaining the BiOp action. He said they told him that their own SOR was based on maintaining river conditions to benchmark certain operations for study.
But Schaller said he didn't think that was his agency's perspective. He said his agency has said numerous times that they believe implementing the BiOp flow targets would be beneficial to migrating stocks, especially this year with so many fish in the river from the added spill.
However, Measure wanted to know why it was so important to get 6 to 7 kcfs from Montana when the ISAB said the impact on Snake River fish wasn't measurable.
Schaller said the ISAB supported the flow targets, and everything possible to help reach them would be an incremental benefit. But Litchfield noted that the small flow boost from Montana may not help reach the 200 kcfs summer flow target at McNary Dam, since flows are declining through August, anyway. Corps representative Kathy Hlebechuk said average flows would be about 160 kcfs for the month, about 40 kcfs below the target.
Neither side would budge and the end result was a Corps operation that began to cut Libby outflows in two steps to reach the BiOp-mandated elevation by the end of the month.
The experience had Council member Measure vowing to put the issue back on the table next year. By then, he said more data should be available to make it more conducive to supporting the state's proposal. He told NW Fishletter that in recent conversations with CRITFC executive director Olney Patt Jr, the commission director had said CRITFC would support the Montana proposal if Montana supported the Fish Passage Center, whose budget has been penciled out in the Senate version of a congressional spending bill. Fish agencies and environmental groups have mounted an extensive campaign to have the bill language excised during conference sessions after the August recess. -B. R.
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