[4] Feds Say 'No' To Montana Plan For Late-Summer Reservoir Releases

Federal executives from action agencies--BPA, the Bureau of Reclamation, Corps of Engineers and NOAA Fisheries--have decided not to implement Montana's proposal for slowing flows out of Libby Reservoir aimed at improving conditions for resident fish.

The federal execs, who met in Portland July 17, said a court order would be required to change operations this year, and without a larger consensus among parties for the change, they thought it was not worth the effort. They expect a beefed-up plan to be in place by next year as part of the new BiOp, scheduled to be finished by Jan. 31.

Montana had called for last week's meeting after its proposal was turned down twice in meetings with state, federal and tribal fish agencies.

The state of Oregon, the U.S. Fish and Wildlife Service and lower Columbia tribes didn't budge from earlier positions opposing the change because it would slightly reduce the amount of water added to summer flows for aiding juvenile fall chinook.

The tribes had put together a counterproposal calling for 20-foot drawdowns of Montana's largest two reservoirs by the end of August, unless water could be obtained from Canada.

Montana's plan called for extending water releases through September to benefit resident fish in the Kootenai River, which means flows out of Libby would have been in the 15-kcfs range and its reservoir would have been drafted by more than 20 feet by the end of September.

But the Corps of Engineers has been releasing about 17 kcfs to get the reservoir down to the BiOp-mandated 20 feet by the end of August in a flow pattern close to the tribe's proposal.

With the 2004 BiOp still guiding hydro operations, despite the fact it has been ruled illegal, its specific language allowed a change from the default operation of the 20-foot drafts, but the federal execs were not prepared to go there, despite a passionate plea from Bruce Measure, a Montana member of the Northwest Power and Conservation Council.

"Regardless of what the flow scenarios that are defined are, what we're really talking about is the federal resistance to pushing the envelope and risking litigation," Measure said.

He said the 20-foot draft limit was "purely an arbitrary spot" because there was no science from the mid-1990s--when it was chosen--that could really show whether it was good for either Montana's fish or downriver fish.

But since then, the Montana flow proposal has been supported by the Independent Scientific Advisory Group (ISAB), and was included as an amendment to the region's fish and wildlife plan that all four Northwest states supported.

"What you're arguing about," Measure told the feds, "these arbitrary positions that you put first in the 2000 Biological Opinion, and again in the 2004 Biological Opinion, and continue to put in now really don't have any basis in fact. The only good science dictates you go the other direction, and operate to the Montana operation."

With the Kootenai Tribe and the state of Idaho on his side (Washington was not represented at the meeting), Measure said some of the federal executives had an obligation to protect those impacted resident fish, the ESA-listed white sturgeon. He also noted the Snake River fall chinook, supposed beneficiaries of the extra Montana water, are already doing better than any other listed evolutionary significant unit (ESU) in the basin.

"What are you gonna do?" he asked the executives. "Are you just going to throw money at this issue every time somebody says, 'Boo'? Because that's what you've been doing so far. And I don't think it's going to get any better."

Measure said this year's proposal from Montana is actually a compromise from its position in the Council's mainstem amendments, which call for drafting Libby only 10 feet in most years, with a 20-foot draft only in the worst 20 percent of water years.

At one point, Measure challenged the right of Columbia River Inter-Tribal Fish Commission biologist Bob Heinith to speak for separate lower river tribes. He said that each spokesperson needed authority from a tribal resolution before he could represent a sovereign entity before the regional forum. Heinith remained silent, even after Nez Perce tribal attorney David Cummings supported him. "This is perhaps the silliest discussion I have encountered in a long time," said Cummings. "It certainly isn't helpful to the relationship between the tribes and the state of Montana."

Montana picked up some moral support from Corps spokesman Witt Anderson, who said his agency backed the Montana proposal in the upcoming BiOp because it provided the best balance between upstream and downstream fish needs. He said few Snake fall chinook are still migrating in August, anyway.

But before the next BiOp comes out, Anderson said, interim operations are still under the 2004 BiOp, which calls for a default operation at Libby of a 20-foot draft by the end of August--with the possibility of modifying it.

He said that since the 2007 hydro operations have been issued as a court order, the Corps would need a majority to support any deviation from that default operation.

"Clearly, there's lack of that broad support up to this point in time," Anderson said.

After some discussion over effects on listed sturgeon from flows dropping too fast in September (because it de-waters the banks of the Kootenai River, where food fish for the sturgeon live), Montana state biologist Brian Marotz said by releasing more water now, there will be less water later. "That's the simple fact."

And with a harder draft of the reservoir, and a short growing season from July through September, Marotz said, "We're going to lose a substantial portion of our growing season." He said an increased reservoir draft also had adverse impacts to shoreline food webs in the reservoirs.

NOAA Fisheries regional administrator Bob Lohn was sympathetic, and said he was persuaded by the ISAB report, which said the benefits to downriver salmon from the standard Montana operation were "immeasurable," and therefore insignificant.

Lohn said that it if was only a biological call, he could not make a case for benefits to the listed fall chinook, but the legal situation--with the 2004 opinion alone guiding operations--would allow for the Montana proposal to take place, since the ISAB report hadn't yet been completed until after the 2004 BiOp was in place. He said the new opinion would be more amenable to the state's concerns.

However, the new opinion hasn't yet been written, and Lohn said his attorneys have advised him that any change to operations that is "seen by others as significant" would likely require court review.

BPA administrator Steve Wright said he was more interested in creating a long-term solution, rather than spending a lot of time in court trying to create this one-year fix.

Wright had received a letter last week from Montana Sens. Jon Tester and Max Baucus saying their state's request "appears to be caught up in a federal legal strategy that puts lower river interests above those of the upper basin. Current operation of these dams sacrifices Montana's ESA-protected fish while producing questionable downstream benefits."

U.S. Fish and Wildlife Service regional director Ren Lohoefener said he had no problems with either flow regime in the competing requests, which put him at odds with his own mid-level staffers who had supported the CRITFC proposal at the IT level.

By meeting's end, Measure said he was encouraged by the commitment of the federal agencies to the "long view," and hoped they would make sure the Montana plan would be part of the next BiOp. He also said he planned to meet with his state's biologists, the sturgeon recovery team and USFWS to discuss implications of the 2007 operations. -B.R.

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