[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
[2] Feds Announce Appeal Of 2004 Hydro BiOp
The Justice Department announced Dec. 21 that it will appeal Judge James Redden's ruling earlier this year that threw out NOAA Fisheries' latest plan for operating federal dams on the Columbia and Snake Rivers. The state of Idaho has also indicated it will take part in an appeal.
In his May 26 opinion, Judge Redden took issue with every major point made by federal attorneys in their defense of the document that found proposed operations would not jeopardize the ESA-listed species in the Columbia Basin. He had already found the 2000 BiOp wanting (NWF v. NMFS) and had ordered NMFS to rewrite it because the offsite mitigation activities designed to boost fish populations weren't reasonably certain to occur.
After much internal debate, NMFS completely changed its method of analysis the second time around -- by separating the fish mortality caused by the dams' existence from that caused by their operations -- and tried collaborating with regional fish managers on its development, with less than limited success.
But the judge didn't buy that one bit. He said the agency was entitled to only "limited deference" for its latest interpretation because it conflicted with its earlier interpretation. Nor did he accept the agency's analysis that it should only consider the effects of actions over which it had discretionary authority.
The notice of appeal means that NMFS, the Bureau of Reclamation and the Corps of Engineers will be heading down two tracks at the same time. Last week, they told Redden they were fully committed to writing a new BiOp and collaborating with plaintiffs as part of the process. They are expected to explain progress in a Jan. 3 update for the judge. It was reported that the feds are developing a massive effort to satisfy Redden's call for collaboration, one that depends on a more formalized process than the previous iteration.
But in a short Dec. 21 press release, federal agencies said they "believe that all legal options must remain open during the remand process. This appeal does just that." It was reported that the Solicitor General's office made the final decision to appeal after getting differing recommendations from NOAA Fisheries and the US Fish and Wildlife Service, with NOAA Fisheries supporting an appeal, but USFWS not -B. R.
[3] New Lawsuits Over Feds' ESA Listing Policy
The Pacific Legal Foundation announced earlier this month that it will contest the new federal policy for determining the listing status of West Coast salmon and steelhead. The policy was revised after the foundation sued the government over its original policy (Alsea Valley Alliance v. NMFS) and won, when Oregon federal judge Michael Hogan agreed with plaintiffs that the hatchery component of a listed fish population deserved the same protections that the wild component received if it was genetically similar.
"Four years ago, federal officials promised they would issue new findings on salmon listings that would comply with the court's decision in Alsea," said Russ Brooks, the managing attorney for PLF's Pacific Northwest office. "Instead, the agency continues to ignore the law and the scientific reality that thousands of hatchery and naturally spawned fish thriving in western rivers mean that salmon are not threatened with extinction."
Brooks says the feds have played a shell game with the new policy, including hatchery fish in the listing, but still only considering the numbers of the wild component to determine whether the stock warrants listing. He says the hatchery fish should be counted as part of the stock. If the feds counted this way, few if any populations would deserve the be listed for protection under the ESA.
"The ESA does not allow federal regulators to treat some members of a species differently when they exist in the same river, in the same natural ecosystems, and interbreed together," added Brooks.
PLF filed the lawsuit on behalf of a broad coalition of property owners, farmers, and business groups representing tens of thousands of citizens in Oregon, Washington, California, and Idaho, including Alsea Valley Alliance, Oregon State Grange, Jackson County Pomona Grange, Washington Farm Bureau, Washington Association of Realtors, Building Industry Association of Washington, California State Grange, Greenhorn Grange, Central Coast Forest Association, Coalition for Idaho Water, Idaho Farm Bureau, Idaho Water Users Association, Pioneer Irrigation District, and Idaho State Senator Skip Brandt.
Environmental groups are going after the new federal listing policy as well. A Seattle District Court judge agreed with the groups in a Dec. 1 ruling that will allow them to continue their litigation begun last summer, refusing a federal request to dismiss the lawsuit. The groups say the feds shouldn't look at hatchery fish at all when making a listing determination.
Another coalition of environmental groups, including American Rivers and Trout Unlimited have announced a lawsuit against new rules adopted by the Federal Energy Regulatory Commission, the agency grants operating licenses to non-federal dams. They say the rules will weaken protections for fish, wildlife and water.
"The new dam rules give utilities an unfair advantage," said Robbin Marks, director of hydropower reform at American Rivers. "Now companies, whose dams have caused so much environmental damage over decades, expect to do even less to safeguard our rivers." The groups argue that the new rules will allow utilities to back out of agreed-upon measures to mitigate adverse effects of dams. -B. R.
[4] 2006 Fish Forecasts Reflect Changes In Ocean Conditions
Columbia Basin fish prognosticators have warmed up their crystal ball for the coming season and are calling for more of the same moderately successful chinook runs as appeared in 2005. Only this time, they don't expect to be blind-sided by the 2005 spring run that came in at about 107,000 fish, 42 percent of what they expected to show. For the coming year, they expect about 88,000 springers.
Very warm ocean conditions off the Northwest Coast and the lack of upwelling likely played a large role in reducing ocean productivity. The good news is that oceanographers now say that the ocean may have turned around once again as it did in 1999. Colder water seems to be heading north, which should improve returns, maybe for several years in a row. University of Washington climate researcher Nate Mantua said the Pacific Decadal Oscillation index has gone negative for the third month in a row, which shows a definite trend toward improving conditions for salmon off our coast.
The Snake River spring/summer component is expected to make up about half of the overall run at 46,000 fish. More than 51,000 were counted in 2005, but that was way short of the 128,000 prediction as well. The wild part of the Snake run is estimated at 14,600 fish, about 1,500 fish higher than this year's number.
The upper Columbia spring chinook component is expected be made up of 12,600 chinook, down from the 19,700 that the harvest managers estimated to have actually appeared. The wild part of the run is only predicted at 1,600 fish in 2006, down from the 2,500 that showed.
Summer chinook should appear in somewhat smaller numbers than last year's 60,000 fish, which the managers had pegged nearly perfectly in their pre-season prediction.
As for sockeye, managers expect about 31,000 fish, less than half of this year's return, and they are only counting on 21 Snake River sockeye to enter the Columbia next summer, the same number that they estimated made it back this year.
Fall chinook numbers may be down too from previous high returns as already seen in 2005 numbers. Managers said 2006 is likely to produce less fall chinook than this year's 561,000 return, and could drop below 500,000 fish.
Jack counts of upriver brights in 2005 were the lowest since 1994 (Jacks are precocious males that return a year ahead of the main part of the run). The 2006 return is expected to be less than the nearly 300,000 upriver brights that came back in 2005. The managers say preliminary estimates may put the run size below the 200,000-fish mark. Biologists conducting aerial surveys in the Hanford Reach in October and November found nearly 7,900 salmon redds were dug by spawners this past fall, nearly as high as last year's 8,500 redds.
Bonneville Pool hatchery returns are expected to be less than this year's 102,000 fish, since the jack count for the stock is the lowest since 1997.
Lower Columbia hatchery fish are expected to return at less than 2005's 70,000 number, but the wild stock may be similar to this year's 20,000 fish return.
Mid-Columbia brights should return in numbers close to this year's count of 73,000 fish.
Coho returns are expected to follow close to 2005's return. Managers said the jack returns are similar to 2004 numbers, when the adult return came in around 300,000 fish. -B. R.
[5] Grant PUD Finishes Settlement Talks Over Fish Issues
Grant PUD announced settlement talks have been completed with state agencies and tribes over salmon and steelhead issues relating to the utility's existing and new license for the Priest Rapids Project.
In a Dec. 21 press release, the utility said the settlement agreement is the third and final piece of the project's salmon and steelhead protection program. It follows the biological opinion issued by NOAA Fisheries in May 2004, and the April 2004 agreement that reduced flow fluctuations in the Hanford Reach for improved protection of fall chinook.
Tim Culbertson, Grant's general manager, said the process to reach these agreements has spanned the past 20 years. "Grant PUD continues to work collaboratively with fish agencies, other dam operators, tribes and other interests to design programs and make decisions that are scientifically founded. Following the science will always be the cornerstone of our natural resource protection programs, now and in the future."
According to the PUD, the settlement provides greater guarantees on timing of water delivery, provides new weekend protection flows and limits flow fluctuations for juvenile fall chinook rearing in the Hanford Reach.
The new BiOp calls for downstream fish passage facilities to aid ESA-listed chinook and steelhead, aggressive monitoring and evaluation, predator controls, funding for habitat protection, hatcheries designed to protect naturally spawning populations, and the replacement of old turbines at Wanapum Dam with new ones that improve fish survival.
On Dec. 14, the Federal Energy Regulatory Commission gave its approval for the utility to install nine more new turbines at Wanapum Dam. The approval was given after successful testing of a new one found overall fish survival as good as at the old turbines, and better than at most other projects in the Columbia River. The new turbine also improved generation capacity by 14 percent and was three percent more efficient in their water use. The nine remaining turbines will be replaced by 2012, at an estimated cost of $150 million. -B. R.
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