[2] BiOp Plaintiffs Ready To Square Off In Court

BiOp plaintiffs filed their reply to the thousand or so pages of federal agency arguments against their proposed hydro operations on Dec. 7, conjuring up a Stars Wars-like defense of their proposal. The proposal calls for a more natural-like spring freshet and less reliance on techno-fixes. They quoted from a popular science fiction movie to make their point.

"Even Yoda, in advising Luke Skywalker in The Empire Strikes Back, aptly noted in words applicable here, 'You must unlearn what you have learned,'" they said, arguing for more "normative" river operations, citing a 10-year-old report to make their case for more flow and spill in 2006.

The environmental and fishing groups in the litigation downplayed concerns of upriver tribes over adverse effects from any further drawdown of the pool behind Grand Coulee. They used a new declaration by Bob Heinith, policy analyst with the Columbia River Inter-Tribal Fish Commission to make their case. He claimed such impacts would be "temporary."

Heinith's latest declaration also took issue with the feds' assertion that their research has shown that any flow-survival relationship is weak and inconsistent at best. Rather, he said increased flow conditions will improve fish survival.

The plaintiff groups also said federal authorities have no excuse for not asking Canada for more water or requesting that they operate their reservoirs in a manner that would add more water to flows for US fish.

The groups also say the federal analysis that predicts higher returns of Snake River fish by concentrating on barging fish after April 20 is "fundamentally flawed," its selective use of data "misleading," and will likely "cause far more harm than the spring spill relief NWF seeks."

They also took issue with the federal analysis that said the NWF proposal would uncover fall chinook redds in the Hanford Reach in most years and short water needs of spawning chum below Bonneville Dam, saying that the feds' modeling effort was based on "incorrect implementation" of the proposal. And they also said Montana shouldn't worry about its own resident fish needs; the NWF proposal would satisfy their concerns.

The plaintiffs said the feds had made errors and used inappropriate assumptions in their economic analysis of the NWF proposal, which calls for operating US reservoirs in a more restrictive way to save water, but would reduce flexibility of winter power operations, especially in January.

Citing declarations by Kyle Dittmer, CRITFC hydrologist-meteorologist and consultant Ed Sheets, they admitted that impacts will be mostly due to foregone power revenue, "which may have a total dollar value that is large but that will have actual economic effects on regional ratepayers and others that are quite modest." They estimated the added spring spill from their proposal would cost a minority of ratepayers less than $3 a month. Citing past BPA actions, Sheets also claimed that the injunction may not raise power rates at all.

The arguments will be aired in BiOp judge James Redden's courtroom on Dec. 15. The judge had earlier quashed the feds' call for an evidentiary hearing on the complicated issues of fish survival and hydro operations, but he and his technical advisor, retired fisheries professor Dr. Howard Horton, attended a Nov. 22 informational meeting by federal officials to explain how the hydro system worked.

Some attendees came away from the meeting in a state of near panic, after some of Dr. Horton's questions revealed what they called an alarming lack of knowledge about the federal system of dams and reservoirs in the Northwest. Horton has helped federal judges sort out issues in assorted BiOp cases for ten years or more, having worked with Oregon federal judge Malcolm Marsh, who upheld the 1995 BiOp in a lawsuit filed by many of the same environmental and fishing groups that challenged the last ones.

Plaintiffs used Marsh's own words in their final remarks, when he noted in another case (IDFG v. NMFS) 10 years ago that the hydro system "literally cries out for a major overhaul." Since then, spill at dams has been boosted, millions of acre-feet of water set aside for flow augmentation, with BPA now spending close to $700 million a year on fish recovery actions. -B. R.

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