[3] Spill Boosters Take On Status Quo
Bonneville Power Administration customers and the state of Montana have responded to BiOp judge James Redden, after some plaintiff groups said that fish would be better off if dissolved gas standards in the Columbia and Snake rivers were relaxed.
Earthjustice attorney Todd True discussed relaxing the gas caps in remarks last month filed with the court that explained why lead plaintiff National Wildlife Federation would not seek more changes to hydro operations this year.
But without the support of the Corps of Engineers and the five Basin tribes--which have already assented to 2007 operations in an unusual agreement with BPA--enviros were reduced to speculating that more spill would help fish if gas caps in downstream dam forebays were raised. They admitted the court was not the right place to get the gas caps relaxed.
Using an estimate from an analysis produced by the Fish Passage Center last summer, True said another 4.4 million acre-feet could have been spilled for fish passage if TDG caps were bumped to 120 percent in dam forebays from the current cap of 115 percent, mandated by the 2004 BiOp.
That's still 5 percent above Clean Water Act limits, and one of the reasons Oregon granted a waiver in the past. Both Washington and Oregon have agreed to the higher caps, including 120-percent TDG in dam tailraces.
But Oregon is in the process of extending its waiver for another five years, and salmon managers are using the process to stump for bumping up gas levels in dam forebays.
NWF told the judge that the forebay caps have kept the court from ordering more spill.
Montana and BPA customers said their own analysis of last year's spill regime showed that the Corps spilled 23 percent more water than the judge had ordered. They said the plaintiffs' complaint relied on a memo from the Fish Passage Center that didn't count the actual spill.
They also pointed out that daily spill statistics really don't mean much since it is the cumulative effects of spill operations that determine survival levels during the three- or four-week period that fish are passing through the hydro system.
But even if the FPC's 4.4-Maf calculation is correct, the defendant-intervenors say that's just a drop in the bucket compared to the 90 Maf the court had ordered to be spilled, and any relaxation of the standards would result in increased risks to fish.
They noted that NWF was very concerned about adverse effects of spill when it had sued the Corps of Engineers a few years ago for not complying with dissolved gas and temperature standards (NWF won at the district court level, but lost on appeal), citing NWF language in that case, that gas levels below dams could reach 170 percent and cause "near-instantaneous death" to fish.
Montana and the customers noted that Redden's court had no jurisdiction to change gas caps, and that's why the argument is spilling over into the waiver process at Oregon's Department of Environmental Quality.
The defendant-intervenor groups also took issue with NWF comments about adding more flow, countering with the comments of the independent science panel from a few years ago, which found the old flow/survival paradigm "no longer supportable."
Montana and the customers told the judge that the feds' research has "consistently shown that survival of salmon and steelhead from smolt to adult . . . is largely dictated by ocean conditions."
They said the research also demonstrated that life-cycle survivals were as high in the late 1990s as the 1960s before the Snake dams were built.
The defendant-intervenors pointed out that the FPC report, used by the NWF to argue that runs are continuing to decline, has come under increased scrutiny due to "scientific concerns" and other criticism from the same panel that questioned the value of flow augmentation.
Lastly, they took issue with NWF's claim that this year's adult returns are likely to be as bad or worse than 2006, noting that the 2006 forecasts were far lower than the eventual run. They pointed out that the low forecasts that NWF relies upon also showed that returns to the Willamette in 2006 were the lowest since 2000.
The Willamette has a chinook run that doesn't have to deal with the hydro system at all. Such low returns, they said, were likely explained by ocean conditions.
But the judge didn't take kindly to the lecture, since he had already had a request from irrigators to add a recent report from Canadian researcher David Welch to the record, one that purports to show little evidence of delayed mortality of Snake River chinook.
In a Feb. 5 order, Judge Redden said recently received information from a large number of groups raised some concerns for him.
"I urge the other parties to resist responding and, indeed, I discourage parties from filing 'motions' and/or 'responses' that appear to be an inappropriate attempt to educate the court on issues that may arise in the future but are not now pending before the court in any adversary context," he wrote.
The gas-cap controversy will be moving to Oregon's DEQ where the Corps of Engineers has already filed documents for another waiver that calls for maintaining the status quo gas caps, but keeping them in place year-round.
The Corps' analysis has already drawn criticism from state and tribal fish agencies, who posted their comments on the FPC Web site at the end of the year. They said dissolved gas monitors in some forebays and below Bonneville are susceptible to erroneous readings, and should be moved.
The agencies estimated that the 115-percent-forebay/120-percent-tailrace TDG criteria "can result in substantially fewer fish passing over the spillway at many projects as compared to managing spill based on 120-percent tailrace TDG criteria."
Critics said the most effect would be seen at Little Goose Dam on the lower Snake, where 18 percent fewer spring chinook would pass the dam via spill if the current forebay criteria was maintained, and at Bonneville Dam where 7 percent more spring chinook would pass via spill.
State fish agencies from Oregon, Washington, and Idaho, along with the Columbia River Inter-Tribal Fish Commission and the U.S. Fish and Wildlife Service all signed the technical staff memo.
Northwest RiverPartners, the coalition of utilities and other river users, has filed comments with the DEQ that includes a recommendation for maintaining the "115/120" gas caps, but they don't agree with the Corps' proposal to extend the waiver beyond the April through August fish passage season.
RiverPartners also went on record against issuing a temporary waiver for spill in March at Bonneville Dam. A three-year interim agreement with USFWS and BPA has run its course over the March spill program for aiding millions of fall chinook released from Spring Creek hatchery above the dam, and both sides are back to square one.
The fish and wildlife agency supports a waiver for 10 days of spill while the power agency calls for use of the dam's corner collector for passing the fish, citing research that showed safer passage than the spillway provided.
But USFWS claims it has evidence that fall chinook using the spillway in 2004 had a better smolt-to-adult return rate than those passing the dam via the corner collector. -B. R.
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