[1] Feds Come Out Swinging In Support Of New BiOp

The best available lawyers from environmental groups argued with the best available lawyers from the Department of Justice last week over just what the feds call the "best available science" in the next hydro BiOp, now scheduled to be finalized March 18.

The gloves came off early during the Dec.12 status conference in the federal court of Judge James Redden. He said it was clear that the feds weren't going to breach dams, and he put everyone on notice that he was considering other drastic actions if the next BiOp doesn't fly--things like drawing down John Day Pool to improve the travel time of ESA-listed juvenile salmon and steelhead.

The JD drawdown has long been controversial. The Corps of Engineers studied it in 1995 and concluded the survival benefits were negligible compared to the costs involved. The drawdown issue has been the centerpiece of a series of proposals pushed by the state of Oregon to improve survival. However, other parties to the remand have heartily criticized the state's analysis.

But DOJ attorney Robert Gulley pointedly said plaintiffs' claims that the new BiOp doesn't even offer the fish as much protection as the previous version is wrong. Plaintiffs say the new plan's call for less spill will short-change fish.

Gulley said the draft BiOp's call for ending spring spill May 15 at lower Snake dams to collect more fish for barging is based purely on the research results from NOAA Fisheries. They say ESA-listed B-run steelhead (Idaho-bound) would benefit from it.

The B-run fish have "significant problems," Gulley acknowledged, and need some help. But he also said the proposed change raised a red flag from some parties to the remand. He said the feds will be asking the Independent Scientific Advisory Board to review the issue--and also ask them to field comments about it from anyone.

Gulley took head-on comments the state of Oregon filed last week with the court alleging the draft BiOp is not guided by science, but, rather, "manipulates" it to justify policy objectives that subordinate the needs of listed fish. He countered, claiming the state failed to explain how the Independent Scientific Advisory Board (ISAB) has analyzed two issues--the questions of latent mortality and the COMPASS model used to estimate survivals from different hydro operations--and came up with results much different from the state's position.

It shows that Oregon is wrong when the state said NOAA Fisheries is not using the "best available science," he said.

Oregon said the BiOp essentially disregards the "key measures" identified by the state, but Gulley said the state has "failed to tell the court that the ISAB has already reviewed the issues undergirding many of the key measures identified by Oregon. As part of the collaborative process, the PWG [policy working group] sent out two issues to the ISAB and asked for their input. Oregon, like everyone else had an opportunity to participate in that process."

By continuing to support its own measures, Gulley said, the state "simply fails to heed the ISAB's strong recommendations."

Gulley also said the government couldn't agree to a court-appointed expert panel (which federal law allows for cross-examination) because the BiOp must be reviewed strictly "on the record." He noted the three independent reviews that have already taken place and will be part of the record.

But the judge may go for it, anyway.

"We've had over the years, an awful lot of political science," Judge Redden interjected, "and we may want to have some rebuttal for that." He said if it's illegal to appoint such a panel, he won't do it, but if it isn't, he "probably will."

Earthjustice attorney Todd True argued that the federal jeopardy analysis is flawed because it doesn't use results generated by the Interior Columbia technical recovery team, which estimated the survival gaps that needed to be filled to recover each ESU.

Gulley said the feds had expanded their jeopardy analysis from the TRT results to include six additional ways of examining the trends of the stocks and what was needed to keep them on the road to recovery.

True also argued that the court's concern over whether the habitat mitigation is reasonably certain to occur is justified, because the actions from 2010 to 2017 haven't even been named yet.

He also took issue with Gulley's assurances that BPA would be funding the $45 million in annual habitat money through its next rate case, and that other financial instruments--cost recovery clauses--would insure that future fish obligations were met.

On river operations, True criticized the inclusion of the "Montana operation," because it reduced flows through the hydro system. The Montana operation calls for flattening flows from that state's reservoirs to balance needs for upriver stocks, including ESA-listed bull trout.

His comments were later challenged by attorney Mark Stermitz, representing Montana, Washington, the Colvilles Tribes, and the BPA customer group.

Stermitz pointed out that the ISAB had peer-reviewed the Montana operation and concluded that it had negligible impacts on downstream fish.

Stermitz laid into state of Oregon attorney David Leith after a presentation listing his state's beefs over the draft BiOp, calling them "nothing short of appalling."

He said Oregon's list presented in court had never been shown to the policy workgroup dealing with the BiOp, that the state had refused to submit its call for John Day MOP drawdown to the ISAB for review, "and then, instead of working with the PWG on it, has been in back-channel negotiations with the federal government. It's like Dad didn't give them what they want, so they're going to Mom," he said.

Gulley accused Oregon of undermining the whole PWG process and said he hoped the John Day MOP issue would die of its own weight because it was a bad idea.

"For the state of Oregon to stand up here and talk about the 'best available science' when it's a matter of public record by a district court in this state that they will cherry-pick scientific evidence to suit their own purposes speaks to the lack of credibility they have with some of us other parties when it comes to best available science," Stermitz said, pointing to the state's approach over ESA-listed coastal coho as evidence.

Environmental attorney True also knocked the removable spillway weirs now being installed at many dams. He said they were very expensive and the evidence is not clear they provide a significant benefit over spill--but because they take less water to produce the equivalent survival of spill--"so they are really a power mitigation measure." He said the region could get to the same point as the long and expensive RSW schedule "just by opening the spillbays tomorrow."

True listed a litany of hydro system measures that could make up for not breaching lower Snake dams--more flow augmentation from the upper Snake and Columbia; drawing down reservoirs on the lower Snake or at John Day; additional spill (daytime at John Day); and measures that would truly spread the risk for barging and inriver migrants, along with a call to stop load following operations at the dams.

The federal agencies could seek the authority to breach the lower Snake dams, he said, but lacking that, it would likely be necessary to implement all the items he mentioned, "and some more in order to avoid jeopardy," True said.

If the government continues with its current approach, it will jeopardize the listed species, he said. However, to do that legally, it would have to obtain an ESA exemption from the God Squad.

However, he felt the feds would not be granted an exemption since it requires "the absence of any cost-effective mitigation measure that would conserve the species--and here we have an abundance of mitigation measures, they are just not being implemented."

True also knocked the methods used by the federal agencies to estimate benefits from habitat and hatchery improvement, the use of the COMPASS model, and their analysis of the future effects on fish from global warming.

He supported the option of using a new science panel to answer questions about the BiOp.

Let's Make a Deal

After True said his clients plan to file a motion before the end of the year to effect changes in spring and summer spill to 2008 river operations, Gulley offered him a deal--to continue the 2006 and 2007 court-ordered operations in 2008 if the plaintiffs back off. Gulley said his department didn't really have the resources to waste on an injunction while still working on finalizing the BiOp.

True declined the offer.

"I think it's a pretty good deal," Judge Redden quipped.

Gulley also knocked True's citation of a peer-reviewed article (Budy and Schaller, 2007) that the environmental attorney said showed the limitations of habitat improvement in recovering fish. "It is a paper that's looking at reaching recovery, which is different from satisfying the jeopardy standard," Gulley said. "They didn't use all the different mitigation approaches that were used in the RPA. They used a data set that hadn't taken into account a lot of the changes that have been made in the hydro system."

The DOJ attorney said True's characterization of the RSWs [Removable Spillway Weirs] as related to power production rather than fish "is not fair and not right." He said they provide important benefits in spill and preventing entrainment (total dissolved gas), and play an important role in fish passage and "represent a valuable contribution towards improving dam survival."

Gulley also argued that the conservative approach used in the BiOp towards global warming issues will hold up under scrutiny.

Other questions came up in comments from the Nez Perce Tribe over whether a new harvest agreement between U.S. v. Oregon parties over the harvest of B-run steelhead should be included in the BiOp's baseline. The new agreement, which isn't yet available for public review, supposedly calls for higher-than-current harvest rates (17 percent now) when abundance is high, but for less harvest than now allowed when the stock is in the tank.

Washington state attorney Michael Grossman said the new harvest proposal is now becoming "the tail that wags the dog," since some parties say the hydro BiOp must be completed before the harvest BiOp is finished. He called for more transparency and wanted an analysis of the actual impacts of the proposed changes.

But Yakama tribal attorney Tim Weaver expressed shock that Grossman wasn't aware of the new harvest agreement, since his state is a party to it. WDFW's Bill Tweit told NW Fishletter that the draft harvest agreement is nearly finished and the states of Oregon and Washington are beginning their biological assessment, which will then be handed over to NOAA Fisheries, who will write a biological opinion on it.

Tweit said US v. Oregon parties have been talking about the possibility of extending the interim agreement now in effect, to keep the effort tracking with the hydro BiOp, which is now scheduled to be released Mar. 18. The interim harvest agreement is scheduled to end before that. Tweit said there were elements in the hydro BiOp that affected the harvest BiOp, "It's an All-H plan,. after all," including issues like nailing down the funding certainty for "conservation" hatcheries that will contribute to recovering listed stocks. Tweit also acknowledged there were still questions about the accuracy of B-run steelhead harvest numbers, which some parties say may be under-estimated.

Other tribes gave the BiOp collaboration good marks, especially the Colvilles and Warm Springs representatives. But attorney Howard Funke, representing the Spokane Tribe, complained that the upper Columbia listed chinook and steelhead were getting short shrift in the draft BiOp compared to the Snake stocks. He said the process was out of whack because the upper Columbia fish were more endangered, but the region used "our water" to help bail out the other stocks.

By the end of the session, Judge Redden said the collaboration has worked very well, but "some more talk" was needed. He reminded everyone what he had said in his letter the previous week, that there will be serious consequences if the BiOp fails to pass muster and that a permanent injunction "would be very harsh. And I don't know just how harsh," he muttered, "I don't even think the scientists would like it."

Redden said he didn't think the God Squad would say there was nothing more the region could do--"because there's always something else." He called on all parties to come up with a BiOp they can all live with. -Bill Rudolph

[2] Enviro Groups Promise More Litigation Over Future Dam Operations

Judging from comments filed in federal District Court in Oregon before last week's status conference, the collaborative effort to produce a new hydro BiOp may be on its last legs. The parties seemed more cordial in court, but also more collaborative than they really may be, according to some participants, who suggested that the long-term agreements between Action Agencies and the individual state of Oregon and some tribes are far from being settled.

For Oregon, the main sticking point still seems to be its insistence on a future drawdown of John Day Pool to aid fish passage, despite years of studies by federal agencies that have found its negative aspects far outweigh any benefits to fish.

Its was reported the state is also pushing hard for a huge fish monitoring effort, that would call for PIT-tagging hundreds of thousands of more salmonids.

As for lower Columbia tribal entities, the dealbreaker for them may be their insistence that any long-term settlement with BPA over the BiOp (read lots of habitat improvement projects) must be maintained even if the next BiOp is thrown out by the court. It was reported that BPA has told them it will not agree to such terms.

Last week, in comments to the Northwest Power and Conservation Council, BPA administrator Steve Wright said that the settlements would go out for public comments before they were completed. That's a far cry from last year, when BPA cut a series of deals with some tribes to gain support for 2007 hydro operations, which included funding projects that had not passed muster through the standard BPA/Council F&W process.

Meanwhile, lower Columbia tribes took some serious potshots at the draft hydro BiOp in their written comments to Judge James Redden.

They criticized NOAA Fisheries' jeopardy analysis of ESA-listed stocks because it disregarded the technical recovery team's gap analysis that estimated the abundance and productivity gains needed for recovery.

The tribes also said the document failed to include mention of a new harvest agreement among U.S. v. Oregon parties they say will offer listed Idaho steelhead more protection when run sizes are low.

Nor were the federal agencies aggressive enough about the use of conservation hatcheries to advance recovery and meet the legal obligations of the tribes.

They were also concerned that some significant actions contemplated in previous plans were omitted, such as the operation of the John Day reservoir to minimum operating pool, and studying the breaching of lower Snake dams.

The tribes are in settlement talks with action agencies over BiOp issues, but it doesn't seem like they are nearly ready to support the RPA [Reasonable, Prudent Alternative] created by NOAA Fisheries.

They said many of the habitat improvement actions offered by the tribes were not included in the draft BiOp.

Lower-river tribes and environmental and fishing groups also said the draft BiOp includes less spill from both court-ordered levels and their 2007 agreement.

In fact, Earthjustice attorney Todd True said in his comments that his clients are prepared to file a motion for injunctive relief to boost spill levels back up.

The feds have cited their own research to support the action in the draft BiOp that calls for ending spring spill by May 15 and barging all fish from Snake River dams to boost steelhead returns. They also called for ending summer spill early if few fall chinook are in evidence.

But True argued that the draft BiOp really offers the fish less protection than the 2004 BiOp or even the 2000 BiOp, and scrimps on flows as well. He also took aim at the feds' jeopardy analysis, saying it has shifted from the remand process previously agreed upon by parties in the litigation--and now relies on a memo that may not be legally or scientifically accurate.

In its comments, the state of Oregon paid lip service to ongoing collaboration. However, it said the draft BiOp is not guided by science, but "manipulates" it to justify policy objectives that subordinate the needs of listed fish.

Washington, Montana, and other members of the "regional coalition," the BPA customer group, and the Kootenai and Colville Tribes, suggested comment time be extended from Dec. 15 until Dec. 30, which would move the final BiOp's scheduled release from Jan. 31 to sometime in March. They said the process shouldn't be rushed by an '"unrealistic time frame" and should be allowed to incorporate everyone's views.

The Spokane tribe, which has left the regional coalition, had its own concerns about the feds' analysis and effects of future operations on Lake Roosevelt and questioned whether the court "should lend credence to the continuation of the collaborative process."

After the comments had been received by the court, Judge Redden sent a letter to all parties that questioned whether the federal agencies were really serious about considering significant changes to dam operations, and that the new BiOp appeared to rely on actions neither reasonably certain to occur, "nor certain to benefit listed species within a reasonable time."

But after the Dec. 12 hearing, some participants said Judge Redden seemed more inclined to listen to the feds' arguments in favor of their draft BiOp than his letter had intimated. -B. R.

[3] Harvest Managers Predict Huge Spring Chinook Run

Columbia Basin harvest managers say next year's spring chinook run could be the third largest to return to Bonneville Dam since the project was completed in 1938.

Managers released their optimistic, preliminary estimate last week, predicting that more than 269,000 spring chinook (to river mouth) will be heading above Bonneville Dam, more than three times the size of the 2007 spring run.

In 2001, more than 415,000 spring chinook passed the dam. In 2002, 309,000 were counted, and 230,000 in 2003. Since then, ocean conditions deteriorated, but have perked up again in the last couple of years.

The big prediction is also good news for ESA-listed wild spring chinook heading for the Snake River. Managers estimate that 21,000 will show up this year, twice last year's numbers. They also expect about 145,000 hatchery spring/summer chinook to return to the Snake, almost three times last year's numbers.

Wild springers from the upper Columbia, which are listed under the ESA, are also expected to do relatively well--2,900 are expected, three times last year's numbers.

But if managers are correct, the spring run in the Willamette is not going to produce much. They estimate only 34,000 chinook will return, even lower than last year's paltry 40,000-fish run.

However, Yakima springers are also predicted to do well. More than 10,000 may show in 2008 if the harvest managers' crystal ball is right. Last year, only about 3,000 were estimated to have returned.

There have been other large runs over the years--in 1972, 186,000 fish were counted at the dam--but heavy fishing pressure by commercial gillnetters in the lower river siphoned off nearly 113,000 fish that year.

In those days, most fish were wild--another big difference from today's run, of which 80 percent or more are hatchery-bred.

By the early 1980s, when hatcheries were going full bore and churning out nearly 400 million smolts a year, Bonneville counts of spring chinook (including jacks) never climbed above 123,000, the mark set in 1986 and including a lower-river fishery that harvested only 1,000 fish. -B. R.

[4] Latest Research Strongly Supports Fish Barging Effort

Barging wild spring chinook from Lower Granite Dam was about 500 percent more effective than leaving the fish in the river, according to federal scientists who added up adult salmon survivals from the 2004 outmigration.

They said wild steelhead showed about a 250-percent survival improvement from barging.

The results were presented at the annual Corps of Engineers' research review, held Dec. 3-6 in Walla Walla.

NMFS scientist Doug Marsh, who presented the latest fish transportation analysis, told NW Fishletter that his results may be biased somewhat towards barging because the analysts were forced to combine juvenile groups using different inriver passage routes in order to improve statistical rigor because so few adults returned.

In fact, no adult wild springers were counted that were not detected as smolts, which means they passed all four Snake dams via spillway or turbine as juveniles.

Marsh said the overall ratio of transported to inriver SARs [smolt-to-adult returns] was 4.8:1.

In 2006, adult returns to Lower Granite Dam were small as well--only two dozen in the case of the barged spring chinook--but they outperformed inriver migrating (non-detected) chinook by 2.64 to 1.00.

Barging was effective for wild steelhead as well, with the ratio of transported to inriver at 2.5:1. Marsh's 2006 results were nothing short of spectacular. They outperformed non-detected inriver migrators by 800 percent.

Other findings on the barging front included the latest results from a study headed by F.J. Loge of the University of California at Davis.

The study investigated effects of disease on barged and inriver smolts by putting fish from each category in net pens in the estuary below Bonneville Dam to see how they fared. The study found that barged fish from Idaho's Dworshak Hatchery (Clearwater River) had significantly greater mortality than transported fish from the Rapid River Hatchery (Snake River).

The study concluded that the differential delayed mortality of barged fish was mainly due to the health status of the fish when they entered barges at one of the lower Snake dams, and not necessarily from the barge conditions themselves.

"Once the differential delayed mortality is expressed in the estuary by the natural culling of unhealthy fish," they reported, "the remaining barged fish are healthier than fish with an inriver life history."

These results could affect the debate with fish advocates, who say barging doesn't work.

Other scientists, led by researchers from NOAA Fisheries and Battelle, said their preliminary results of extensive acoustic-tagging studies are showing somewhat better estuary survival than their previous two years' results when they estimated spring smolt survival from Bonneville Dam to the ocean between 60 and 85 percent.

Previous findings also found that about 80 percent of the little springers made the journey from Lower Granite Dam to the mouth of the Snake and, around 40 percent make it all the way downriver to the ocean.

Canadian researcher David Welch said his 2007 results were similar to his 2006 results. Using acoustic tags that are larger than the Corps' version and longer-lasting, Welch has followed small groups of both barged and inriver migrating fish past the mouth of the Columbia to detection arrays off the Washington coast and the northern tip of Vancouver island. Survival of Yakima and Snake River smolts were reported to be nearly identical to the 2006 results, but higher for the Snake River fish "when migration distance was taken into account."

Welch found that the survival of transported smolts between Bonneville Dam and Willapa Bay was equal to or greater than the inriver smolts--"indicating transportation did not reduce survival."

His initial findings showed about 20 percent of both the Snake and Yakima inriver migrating fish made it to the first ocean array off Willapa Bay. About 5 percent of the Snake fish and 2.5 percent of the Yakima fish were detected off Vancouver Island. -B. R.

[5] Fish Passage Center Tries End Run Around Science Panel

After two science panels recommended that the Fish Passage Center stop PIT-tagging downriver stocks in its controversial 10-year-old Comparative Survival Study, the FPC is looking to fund the efforts by moving them to another project administered by the Center--its smolt monitoring program.

The study has been looking at the potential benefits of barging, and compares survival between upriver and downriver stocks. But the science review said the CSS upriver/downriver comparison was confounded by too many variables to be of any value. However, that hasn't stopped FPC head Michele DeHart from requesting a change in the BPA-funded Smolt Monitoring Program to add $144,000 to pay for tagging 15,000 spring chinook at Carson Hatchery and 6,000 wild spring chinook in the Warm Springs River.

DeHart's request for the added tagging money will be taken up in January by a budget oversight group (BOG) that deals with within-year changes to BPA's F&W projects.

Mark Fritsch, staffer with the Northwest Power and Conservation Council, told NW Fishletter that the BOG will make its recommendation on the proposed change after its Jan. 8 meeting. If it recommends the added funding, the change must still be approved by NWPCC members and the earliest that could happen is sometime in May.

According to DeHart's Dec. 4 request, "The action shifts groups from one project in the CSS to the SMP as the result of an ISAB/ISRP review that recognized the groups as important to monitoring but not as part of a CSS analysis."

But the reviewers only said that existing CSS tagging of wild spring chinook and steelhead in the John Day River was not justified for CSS, but "may be justified for other evaluation purposes. The John Day tagging effort is already funded by another project."

Fish and wildlife managers may have to make a new case for tagging the Carson and Warms Springs fish in the future.

Some BPA customers have already taken notice, including Scott Corwin, executive director of the Public Power Council.

"If the experts on the ISAB have questioned it, and Northwest Power and Conservation Council staff recommend against funding," Corwin said, "it makes you doubt whether this is the best use of ratepayer dollars ... it seems like a strange request."

At its meeting last week in Portland, the Northwest Power and Conservation Council voted in favor of a staff recommendation that echoed the science review and said not to fund any future downriver tagging work unless information gathered from it would be useful in other areas. But their recommendation included a call to tag more steelhead from the Snake River. During discussion with staffers, the Council learned that the downriver Carson hatchery fish had already been tagged for the 2008 year.

State fish and wildlife managers weighed in with a Nov. 29 letter to the power council that called for funding the PIT-tagging program for all the current CSS stocks, both upriver and down, saying the scientific review supports the addition of more downriver stocks to determine SARs and population metrics "as part of regional monitoring and evaluation." -B. R.

[6] Washington Pens New Water Agreement With Tribes

Washington Gov. Chris Gregoire announced this week that two Upper Columbia tribes have agreed to release water from Lake Roosevelt to help farmers who have had to rely on the Odessa aquifer for their pumping needs to irrigate 10,000 acres of cropland.

"Today's historic agreement ensures a water supply that sustains farming, supports growing communities and enhances our precious salmon resource," said Gov. Gregoire. "I appreciate and applaud the leadership of farmers, environmental groups, county commissioners, legislators, federal officials and tribal governments in creating a lasting water-supply partnership."

The legislature must approve the agreement that calls for annual payments to the Spokane Tribe of $2.25 million, and $3.8 million to the Colvilles next year and $3.6 million annually after that. Part of the money will go to offset any impacts from the extra foot or so of expected drawdown.

"The Colville Tribes is very gratified that the governor has worked with us as a co-equal sovereign to come to an agreement that protects our important interests in the Columbia River and Lake Roosevelt," said tribal chair Richard Marchand.

"Grand Coulee Dam inundates our boundary rivers and uplands within the Spokane Indian Reservation," said Spokane Tribal Chairman Richard Sherwood. "Our conceptual agreement will provide major benefits downstream while helping the tribe to address some of the impacts from storage and use of that water on our lands."

The agreement will also supplement irrigation needs of some junior water rights holders in drought years by 33,000 acre-feet, and supply more water for municipalities and industry needs.

It will also make 27,500 acre-feet available for salmon flows every year and an extra 17,000 acre-feet to help fish in critical drought years.

The agreement also calls for the legislature to provide $2 million to local governments around Lake Roosevelt to address priority water issues. -B. R.

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