[1] Judge OKs Summer Spill, Balks At More Flows
After an attorney for upriver Columbia Basin tribes painted a grisly picture of the possibility of human remains being uncovered along the shores of Lake Roosevelt and passing through hydro turbines on their way to the sea, BiOp judge James Redden balked at a proposal by environmental and fishing groups to augment flows by drawing down the huge reservoir behind Grand Coulee Dam an extra seven feet.
At the Dec. 15 hearing of oral arguments over the proposal by BiOp plaintiffs to add more flow and spill at federal dams next year, Redden said both sides could work out their differences over flow augmentation during the coming year in the collaborative effort to write the next hydro BiOp.
But the judge OK'd more summer spill for 2006, similar to the operation that the plaintiffs had successfully argued for earlier this year. Federal attorneys had countered by saying that any benefits by barging less fish were still uncertain. But one thing was certain, the strategy cost the region about $74 million in lost revenue.
However, potential costs weren't even an issue during the oral arguments last week, though in declarations, federal agencies had estimated that implementing the entire proposal would cost the region around $450 million if more flows were added to more spring and summer spill.
Judge Redden didn't OK any added spring spill, not yet, anyway. He said he needed another week or so before he made up his mind on the issue. That could add another $46 million to the region's annual spill bill in an average water year, according to BPA figures. The plaintiffs' proposal was estimated to cost an extra $100 million a year, in addition to the added cost of summer spill.
The arguments were played out with plaintiffs producing little in the way of analytical support for their proposal, while federal attorneys cited piles of declarations from NOAA Fisheries scientists that said there is little if any flow/survival relationship for spring chinook at all.
Environmental and fishing groups disagreed, arguing that boosted flows may not produce measurable, incremental survival benefits, but still have an overall positive effect on overall fish survival.
Earthjustice attorney Todd True argued that the feds' "techno-fix" approach of improving dam passage and barging fish is part of a "failed model of salmon recovery." He spoke of a new recovery model that is needed, one that should be based on an ecosystem approach like the message in the 1998 Return to the River report by a group of independent scientists.
Federal agencies had prepared a counter-punch, calling for added spill at Snake River dams in early spring, then shutting it off and barging the spring chinook run after April 20. The feds said it would boost adult returns by 16 percent over the 2000 BiOp operations while the environmentalists' proposal would likely kill a couple of percent more fish than standard BiOp operations.
But True argued that the federal analyses were fundamentally flawed and misleading, while Justice Department attorney Thomas Gulley said True's analyses were "worthless" because an expert witness for the plaintiffs used the wrong hydro model--one based on monthly flow averages for estimating power production-- to justify their proposal to augment flows.
The plaintiffs' plan calls for drawdowns of both Canadian and US reservoirs to boost summer flows in the Columbia, and the operation of reservoirs at upper rule curves from early February through April 20 to preserve more water to put on the fish migration later in the summer.
Gulley said to get that to work on paper, the plaintiffs had to shut down flows in their modeling scenario for significant periods of time, which would uncover Hanford Reach chinook redds and ESA-listed chum redds below Bonneville Dam.
"The plaintiffs don't understand how the hydro system works," Gulley said, adding that their model was based on an unrealistic assumption.
The question of whether getting non-treaty storage water from Canada is a realistic possibility was argued as well. The feds said there was no time to work out an agreement with Canada for next year's operation, nor was it even lawful for the agencies to pursue it. Gulley said the Canadians also have needs for that storage. Nor, he argued, can a federal judge order the executive branch to enter into treaties with a foreign government.
But Redden said the feds should pursue more Canadian water, or more injunctions will be filed to force them to look into it.
Attorney True also called on the judge to order the Fish Passage Center be funded until the 2006 remand is concluded because the FPC analyses are essential for the fish and wildlife agencies to manage salmon.
But federal attorney Gulley said all the basic tasks of the Center will be continued by other entities after March when the FPC funding ends.
David Cummings, representing the Nez Perce Tribe, said the state of Oregon and the treaty tribes need the collaborative analysis of the Fish Passage Center. Without it, he said they couldn't go forward.
After the hearing, Melinda Eden, one of Oregon's members to the Northwest Power and Conservation Council clarified her state's position on the matter.
"The Oregon governor initiated the collaborative process several months before Judge Redden remanded the 2004 Biological Opinion, and the governor remains completely committed to that process," she told NW Fishletter.
Washington Gov. Christine Gregoire and Montana Gov. Brian Schweitzer supported the continued collaboration. "We need a forum that is open, accessible and transparent where all the issues can be addressed," said Gregoire. "We are hopeful that Judge Redden's forthcoming order on collaboration is that process."
"It's a new day," Montana Gov. Schweitzer said, "We have to toss the old way of doing business."
Mark Stermitz, attorney for the regional coalition that includes Washington, Montana, several upriver tribes and the BPA customers group, told the judge that "collaboration is the cornerstone out of this morass." He pointed out that wading through competing declarations was not the way to do the "best available science." He said the panel of independent scientists used by regional entities to sort out thorny issues should be used to weigh the scientific arguments.
Howard Funke, representing the Colville, Spokane and Kootenai Tribes, who had raised the specter of the potential damage to cultural resources in Lake Roosevelt from added drawdowns, said the tribes were not opposed to salmon recovery, but the process was fundamentally flawed. "The plaintiffs' response basically ignored our concerns," he said.
Terry Flores, director of Northwest RiverPartners, a large coalition of BPA customers, said her members are pleased that Judge Redden made a thoughtful response to the call for more flow augmentation, and weren't surprised at his decision to continue summer spill. She just hoped there is some kind of rigorous scientific review in place, "so we can get something out of it." As for Redden's upcoming decision on spring spill, Flores said her group is "anxiously" waiting for it, because it could add another significant amount to power costs. -Bill Rudolph
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