[3] BiOp Plaintiffs Ask For Changes To Winter, Spring Dam Operations

Plaintiffs in the ongoing litigation (NWF v. NMFS) over the Columbia Basin hydro BiOp are asking a sympathetic federal judge for more spill and flow augmentation to help boost survival of ESA-listed spring chinook in 2006.

Calling the extra spill granted by Judge James Redden last summer an unqualified success, attorneys for environmental and fishing groups filed an Oct. 31 motion to add more spill at some dams in the spring, along with more flows in late spring and early summer. Their goal is "to produce a higher flow pulse in the late spring and higher flows throughout the migration season thereafter."

To accomplish this, they want dam operators to hold more water behind Grand Coulee in late winter (Feb. 1 to April 30), and move more flood control to Lake Roosevelt from other Northwest reservoirs, which will be able to hold more water for fish flows than under current operations. In addition, they want another 630,000 acre-feet of water for added flows, either from behind Coulee and Banks Lake or from non-treaty storage in Canada.

Earthjustice attorney Todd True said in the motion that the injunction's most significant request would require the Corps of Engineers and Bureau of Reclamation to manage reservoirs and reach agreement with Canada on managing storage reservoirs north of the border. He cited a new declaration by Columbia River Inter-Tribal Fish Commission analyst Bob Heinith that said several million acre-feet more water could be used for fish flows without increasing flood risks.

The proposed changes in reservoir operations call for limiting drafts from February through March to upper rule curve elevations, which the motion admits would limit power production to "some degree," but claims it would not adversely affect the stability or reliability of the power system.

The motion also calls for moving away from the current practice of running the river to meet flat targets towards a goal of producing a peak hydrograph of average May flows of about 345 kcfs at The Dalles. According to Heinith's declaration, these added flows would boost fish survival above benefits from operations outlined in the 2004 BiOp, now ruled illegal by Judge Redden, but still in place for the time being.

But just how much benefit from the added spill and flow would be gained is never mentioned in the motion or the declarations.

Attorney True says more spill in the spring and summer will allow higher survival of inriver fish. He cited a declaration by CRITFC hydrologist Tom Lorz, who used the federal fish-passage survival model to estimate that the added spill would reduce the portion of the spring chinook run that would be barged from about 74 percent under normal BiOp spill to 55 percent. This would spread the risk more evenly between both strategies, since the feds haven't shown that barging is beneficial to either the wild spring or fall chinook runs on the Snake.

Previous results from federal research have shown that barging wild chinook has been neither much better nor much worse than keeping fish inriver, while hatchery chinook have benefited from barging. However, NMFS results announced this week at a Corps' research review in Walla Walla show that the 2002 migration of Snake spring chinook benefited greatly from the barging strategy; the ratio of transported to inriver non-detected returning fish was 1.64.

But results for 2002 migrating hatchery fish were similar to earlier findings for wild fish--nearly equal survivals to adult return of both barged and inriver hatchery fish.

Washington Gov. Christine Gregoire weighed in against the proposed injunction last week. "I am concerned about the lack of demonstrated benefits and the very real costs," the governor said in an Oct. 31 press release. "We are still awaiting an evaluation of the expensive experiment with spill last summer."

Gregoire also panned the proposed drawdown behind Grand Coulee. "Those actions have serious consequences, and not just financial impacts. They may damage cultural resources, resident fish species, and cause other environmental and health effects," she said. "We simply cannot solve one problem by creating a host of others."

FPC Memo Takes Some Heat

In the filing, both environmentalist declarations cited a Fish Passage Center memo that analyzed last summer's spill effort that said it had paid off in improved fish survival.

But an "after-action" report, released last week by federal agencies, looked into various aspects of the $74-million summer spill and took issue with the main FPC finding that 2005 fish survival increased significantly later in the season.

The memo said the 2005 results were unlike any year examined since 2001, when survival either remained low or declined throughout the summer period.

But the feds said the FPC memo may be "misinterpreted as evidence that overall survival in 2005 was better than the past few years." They said it was difficult to draw such a conclusion because most Snake River fall subyearlings have been transported in recent years, thus not subjected to lower inriver survival rates. Also, a "considerable" part of the run had already migrated down the Snake River before the spill program had even started.

The after-action memo said a more extensive look at the data would show that inriver survivals from Lower Granite Dam to McNary were generally higher in the 1998-2000 period, compared to later years.

A federal analysis said spill benefits in 2005 were very uncertain, depending on how well barged fish survive. They said the added spill might have improved survival up to 7 percent over a no-spill scenario, or could possibly have had a 6-percent negative effect. All in all, they said the overall difference in system survival between the two operations ranged from only about minus one to plus one percent.

The feds also said that the particular dates used by the FPC to separate fish into pre- and post-spill groups didn't take into account the different historical run timing that has occurred in each of those years, or accounted for differences in actual spill levels in those years.

Lastly, the feds said the FPC analysis didn't indicate whether the spill program might have influenced the behavior of the fish that overwinter and migrate the following spring, which has created major headaches in recent survival studies.

But the feds may have pulled a major punch when they didn't include findings from a BPA-sponsored analysis of the FPC memo that was reportedly excised from their own report at the last minute. The review, by University of Washington statistician John Skalski, reportedly found generally similar survival rates to those reported in the FPC memo, but the survival differences between the early and late periods were "not significantly different," a major difference from the FPC analysis.

Skalski's analysis also found little statistical correlation between spill and survival over the years, but did find a relatively high correlation between water temperature and fish survival that the FPC analysis did not find. His analysis used a weighted regression, which weighed the survival data according to its relative precision.

However, dueling experts may not find themselves in court as they had expected. BiOp judge James Redden had earlier scheduled two days of evidentiary hearings in December and one day for oral arguments over interim dam operations. But in a Nov. 2 opinion, Redden cancelled the hearings and also said the case did not need any help from an independent scientific expert or panel to help sort out the arguments, as some parties had suggested.

He also said that declarations would not be limited in length nor number, as he had originally ruled on Oct. 17, when he told major groups that they would only be allowed two experts apiece.

So it seems that interim operations during the yearlong BiOp remand will be determined based on "dueling declarations," similar to the recent battle over last summer's spill, with no evidentiary hearing or cross-examination. The feds had supported evidentiary hearings, but said two days weren't enough time to make their case.

Defendants and amicus responses are due Nov. 22, with replies due Dec. 7. Redden said Dec. 15 will be set aside for oral arguments on legal issues raised by the motions.

But the judge took up one suggestion. He said he would like another presentation on flow augmentation issues that was already done before the region on Sept. 29. Along with Redden, his technical advisor Howard Horton and two law clerks will be in the audience Nov. 22. -B. R.

Subscriptions and Feedback
Subscribe to the Fishletter notification e-mail list.
Send e-mail comments to the editor.

THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.

NW Fishletter is produced by Energy NewsData.
Publisher: Cyrus Noë, Editor: Bill Rudolph
Phone: (206) 285-4848 Fax: (206) 281-8035