BiOp Plaintiffs Agree To Last Year's Hydro Operations
In a Jan. 11 letter to Judge James Redden, Earthjustice attorney Todd True said his clients will not pursue injunctive relief to change dam operations in 2008 if 2007 operations are continued this coming year. But his decision to accept a federal offer may spark further litigation from the state of Montana and others who want the fresh BiOp actions to proceed.
At the Dec. 12 status conference on the next hydro BiOp in Redden's courtroom, Justice Department attorney Robert Gulley offered plaintiffs a deal--to repeat the '07 operations if plaintiffs promised not to file a motion for operational changes to this year's operations. Gulley said he couldn't spare the staff time to pursue the added litigation and keep his other tasks on track. After Judge Redden said the offer sounded pretty good, True still turned it down.
Now, after reviewing the issue with his clients, the state of Oregon and federal attorneys, True said "we will work with the parties to reach an agreement for 2008 operations that would essentially continue--subject to discussion of limited changes necessary to accommodate new structures and perform essential research--the court-ordered operations from 2007."
The 2006 and 2007 operations added more spill to previous BiOp actions, and reduced fish barging from lower Snake dams that federal scientists said would reduce steelhead survival. In 2008, the feds had originally planned to follow their new draft BiOp and end spring spill by May 15 at lower Snake collector dams to barge full-tilt, hoping to boost survival of wild steelhead, including the so-called B-run that returns to Idaho streams in late summer. It's an ESA-listed stock in pretty poor shape.
Harvest managers estimate that in 2006, tribal fishers caught about 1,300 B run wild steelhead, an estimated 16 percent impact. A new harvest regime negotiated through the US v. Oregon process is expected to boost that impact to 20 percent when the upriver bright fall chinook run is plentiful. The projected boost in barging was supposed to help make up for that harvest increase.
The new deal with BiOp plaintiffs and the feds has the state of Montana plenty irritated. Besides the rollover's continuation of a plan that kills more steelhead, they say it also keeps them from implementing the new BiOp's call to change the operations at two of the state's largest reservoirs that would provide more biological benefits to resident fish. The independent science board which reviewed the proposal said the Power Council was "likely justified" to include it in their F&W program because any survival benefits to mainstem fall chinook from added summer flows from Montana would be too small to be measured.
In its BiOp comments filed Jan. 4, Montana said a rollover of 2007 operations "...would continue the blatant disregard for the best scientific information available made for tactical reasons related to the never-ending FCRPS litigation. Undertaking hydropower operations because of the threat of opposition by some parties, without scientific basis, does not equate with compliance with the ESA."
Montana said the rollover would foster a greater risk of more litigation and more delay "in implementing what is needed for the fish." -Bill Rudolph
 Future Harvest Regime May Nab More Listed Steelhead
Earlier this month, the region got a few glimpses of what's likely in store for the future of Columbia River fisheries. It's a process called abundance-based management that would allow more salmon and steelhead to be caught, including ESA-listed stocks such as wild B-run steelhead, when more of them are returning to their native streams.
A sliding harvest rate is already in effect for spring chinook, and that won't change much, said Guy Norman, WDFW regional director and one of Washington's negotiators in the ongoing U.S. v. Oregon process.
But numbers released at a recent joint Oregon-Washington meeting on harvest issues mean the new draft agreement calls for boosting inriver fall chinook harvest rates for both tribal and non-tribal fishers when runs are healthy.
First reported in a Jan. 3 article in the Vancouver, Wash.-based Columbian, the harvest rate for non-tribal fisheries would go up from about 8.25 percent to 11 percent when the fall run is above 200,000 fish.
When runs are that good, the tribal share would go up as well, by several percent from its current 23.04 percent, said Norman, who was careful not to get too specific about the future share of tribal fisheries. There is a long-standing confidentiality agreement among parties to the U.S. v. Oregon process.
But Norman said the lower Columbia tribes and feds had OK'd the release of the information at the meeting of non-tribal harvest stakeholders from Oregon and Washington that was reported in the Columbian article. The meeting was part of the Columbia Salmon River Fisheries Visioning Process that is trying to sort out harvest allocation issues between the sport and commercial sectors.
He said the draft agreement also calls for less harvest on listed Snake River fall chinook than now allowed when future runs are low. The non-tribal rate could drop to 4 percent or even lower if future fall runs are as low as some years in the 1990s.
Norman said when runs are between 217,000 and 271,000 fall chinook, non-tribal fishers would get the same share as they do now.
Left out of the discussion was the impact of the abundance-based harvest regime on ESA-listed B-run steelhead that are heading for Idaho, thought by many to be in pretty poor shape overall. The steelhead are mainly caught in tribal gillnet fisheries above Bonneville Dam.
Norman did say in years when higher harvest rates kick in, more steelhead would be caught in tribal fisheries, but the draft agreement also calls for more protection of the steelhead when runs are low.
He couldn't get any more specific than that, citing the confidentiality agreement in the ongoing U.S. v. Oregon process, which has expanded from its original focus on harvest to include hatchery production issues.
NOAA Fisheries must still complete a biological opinion on the harvest agreement for both tribal and non-tribal fishers, but it's likely the agency will approve the current draft since they have been a party to the ongoing talks all along.
However, other sources said that a retrospective analysis of the harvest proposal shows that if it had been in effect in recent years, more listed B-run steelhead would have been caught in the tribal fisheries than actually occurred.
The B-run fish are in pretty tough shape compared to most other listed Snake River stocks. Only the Redfish Lake sockeye are worse off.
The harvest agreement that expired at the end of the year, and was just extended until Mar. 24, allowed the tribes a 15-percent impact on the B run during their fall chinook season. An abundance-based harvest regime would allow catches a few percent higher than that in years of good runs (see story  for more on harvest rates).
At last month's status conference on the hydro BiOp, the steelhead harvest issue came up, with tribal representatives calling for the feds to include the future harvest regime in its baseline analysis. However, since the harvest agreement was not likely be completed before the BiOp, that issue has been up in the air. The extension granted by NOAA Fisheries may solve that problem.
In late December, WDFW's Bill Tweit told NW Fishletter that the draft harvest agreement was nearly finished and the states of Oregon and Washington were beginning their biological assessment, which will then be handed over to NOAA Fisheries.
He said there were elements in the hydro BiOp that affected the harvest BiOp. "It's an All-H plan, after all," he said, 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 underestimated. -B. R.
 BiOp Critics Ignore Science Board Findings
NOAA Fisheries has been on the receiving end of hundreds of pages of comments on its forthcoming salmon plan and they must now respond. But it's not like they weren't asking for it.
Last November, regional NOAA Fisheries administrator Bob Lohn said his agency was going to accept public comment in the spirit of the collaboration that has guided the new biological opinion on federal hydro operations in the Columbia and lower Snake rivers. However, judging from the tone of many of the comments, the collaboration has been something of a flop.
The comments ranged far and wide over the salmon recovery spectrum. One individual expressed concern about the possibility of killer whales becoming schizophrenic if they don't get enough fish oil in their diet. Then there were nearly 20,000 pre-fabricated letters calling for breaching lower Snake dams, orchestrated by environmental groups, yet individually signed.
The exercise has also given parties to the BiOp litigation an excuse to expand on their comments at last month's status conference in BiOp Judge James Redden's court.
For environmental and fishing groups, the lengthy submission from the Save Our Wild Salmon coalition amounts to a play book for the next round of litigation about the newest salmon plan, scheduled for a Mar.18 release.
In their opening remarks, they said "a serious attempt to heed the best available science would lead NOAA to take a wholly different approach to this BiOp and its RPA" because they claim the science clearly shows that all Columbia Basin ESUs would benefit from the removal of the lower Snake dams.
However, when it comes to heeding the advice of the Independent Science Advisory Board, these groups and the state of Oregon as well, do not even acknowledge the ISAB findings on such important issues as the computer modeling used by the feds to estimate hydro passage survival, and other controversial topics like latent mortality and the Montana flow proposal because the board's conclusions do not mesh with the coalition's own long-standing mantra of dam breaching, more spill, more flow and less barging.
For lower Columbia tribes, represented through comments from the Columbia River Inter-Tribal Fish Commission, the exercise has been a way to apply more pressure to Action Agencies as final negotiations for long-term settlements come nigh in a confidential process that is trying to buy tribal support for the next BiOp.
The negotiations with individual tribes are reportedly not proceeding very well, and the Action Agency officials were discouraged by the nasty tone of the latest comments from Inter-tribe as they tried to forge the 10-year agreements which are expected to add more habitat restoration jobs on tribal turf and cost tens of millions.
"With respect to the hydrosystem the draft BiOp is a step backwards from current system operations specified under the 2000 and 2004 BiOps and the court for flow and spill," said the Jan. 4 CRITFC letter to NOAA Fisheries.
The tribes took issue with several new actions in the BiOp because they would reduce summer flows in the mainstem Columbia. That included the Montana proposal for flattening flows from its reservoirs--a strategy given the thumbs up several years ago by the independent science board.
CRITFC also complained about more "out of river" withdrawals from Lake Roosevelt, moving some upper Snake withdrawals into the spring from the summer period, downgrading spring and summer flow objectives, the draft BiOp's call for ending spring spill in May to boost steelhead survival by barging more fish downstream, and ending spill altogether in dry years.
The tribes also called for the final BiOp to contain other options if performance and recovery standards aren't met--breaching one or more lower Snake dams, drawing down John Day reservoir to spillway crest and adding more flows from Canadian or US storage.
The tribes made a big point of supporting more evaluation of delayed mortality. They said they supported the analysis by USFWS' Howard Schaller and IDFG's Charles Petrosky--which the ISAB has also looked at and found unconvincing. The board said regional scientists should stop trying to quantify that kind of mortality and concentrate on answering questions about the biological benefits of barging fish.
Overall, the tribes said most of their input during the collaboration process had been "disregarded," and that the proposed actions didn't go far enough. "For some stocks this may be too little, too late."
But their concern for weak stocks hasn't stopped the tribes from negotiating a new harvest agreement with state and federal agencies that could bump up future harvest rates on the distressed wild Snake River steelhead as much as 25 percent--up to a 20- percent level. According to the new agreement, that 20-percent take would go into effect when the upriver bright fall chinook run is estimated to come in above 200,000 fish and the overall hatchery and wild B-run is expected above 35,000 fish (the 2007 forecast for the B-run index was more than 45,000). The new harvest rate schedule is included in the CRITFC comments (Attachment F).
The parties to this agreement are saying it also provides for more protection for the fish when runs are low. For instance, if the B-run index falls below 20,000 fish, the tribal harvest rate would slide down to 13 percent, while the non-treaty rate stays at 2 percent. But the B-run index hasn't been below 20,000 fish since 1999. And the URB run has been over 200,000 fish in 6 of the past 8 years.
However, any mention of an increase in the tribal take of fall chinook that would obviously occur with this increased effort, including catching more ESA-listed Snake River fish was not included in their comments.
But it has been reported that the new US. v. Oregon agreement calls for the current 23 percent harvest rate on fall chinook to stay pretty much the same until the URB forecast is above 200,000 fish and the wild Snake fall forecast is between 2,000 and 5,000 (to Columbia River mouth); then it will rise to 25 percent.
With a Snake wild run expected between 5,000 and 6,000, the tribal harvest rate would go up to 27 percent, and the non-tribal harvest rate would bump up to 11 percent; with a 6,000 to 8,000 wild Snake fall forecast, the tribal rate would rise even more, to 30 percent, with the non-tribal rate rising to 15 percent. That's a combined inriver harvest rate of 45 percent, but it may take years to implement it.
The wild fall chinook run on the Snake has averaged about 3,000 for the last five years, which exceeds the 2,500-fish interim recovery target established by NOAA Fisheries. Returns have ranged from about 2,000 to 5,000 fish since 2000.
In the hatchery area, the tribes, especially the Nez Perce, called on the feds to maintain their mitigation obligations despite an ongoing hatchery reform effort they called an "empty promise."
The SOS coalition had a more jaundiced view of hatcheries. They said the draft BiOp "reflects an unjustified reliance on hatchery actions--the success of which are currently uncertain and the known negative impacts of which are not accurately or effectively taken into account--to mask the effects of ongoing hydrosystem operations and assert that these operations will not jeopardize the listed species. This approach is contrary to both the law and the science."
SOS said the latest science on hatcheries makes the mitigation standard "suspect" in the Mid-Columbia PUDs' Habitat Conservation Plan, which allows hatcheries to substitute for up to 7 percent of its no net impact standard for unavoidable mortality past each dam. They called on NOAA to "seriously consider" reopening the HCP to do more to make up for its deficiencies "by requiring significantly improved survival rates at the federal dams on the lower Columbia."
The feds have already admitted that there isn't much they can do to squeeze more juvenile fish survival out of the dams. They estimate that survival past each FCRPS dam now averages about 96 percent for spring migrants and 93 percent for summer migrants.
So just what will it take to sort out all these comments? BiOp Judge James Redden said last month he may appoint a science panel himself to look at certain elements in the next BiOp. He might use the current ISAB, but it was reported that there is some resistance to that idea from several ISAB members themselves. A potential list of ex-ISAB members was delivered to the judge a long time ago. Most on the list were on the board when they judged the Montana proposal and other controversial issues. -B. R.
 The Case Of The Vanishing Fall Chinook
Some adult fall chinook on their way back to Idaho seem to be disappearing, leading a coalition of Columbia River users involved with the BiOp to call on NOAA Fisheries to investigate "some new and alarming statistics for which there are currently no answers."
In written comments to NOAA Fisheries, Northwest River Partners' executive director Terry Flores said that data presented in a lengthy appendix to the BiOp's supplemental comprehensive analysis (on p. 602 of the 820-page document) "establishes that adults are encountering difficulties in migrating through Zone 6 and the lower Snake River reaches."
Zone 6 is the area above Bonneville Dam where tribal fisheries occur every year.
The NWRP letter said that data included in the draft BiOp shows that in 2006, Snake River fall chinook and steelhead were reported to have incurred an unexplained mortality "higher than normal." They said the data also show, along with reported harvest, an additional 20 percent of unexplained mortality of Upper Columbia steelhead between Bonneville and McNary dams. They speculated that the loosely monitored A-run steelhead harvest might explain the discrepancy.
In any case, the group has recommended that NOAA Fisheries implement a new "Reasonable, Prudent Alternative" (RPA) in the final hydro BiOp that will investigate the issues "to ensure that appropriate actions are taken to mitigate this significant new source of mortality."
The group said the sharp drop in survival could come from "unaccounted for" harvest or increased spill, which, in some cases, has already been found to impede the adult spawning migration.
The BiOp data, drawn from PIT-tag survival information, show that 2005 and 2006 conversion rates (the percentage of fish that survive from dam to dam) for Snake fall chinook between Bonneville and Lower Granite dams dropped significantly--from about 95 percent (adjusted for harvest) in 2004 and earlier years to 72 percent in 2005 and 56 percent in 2006.
However, others familiar with the issue say the results may simply be "random noise." Results for 2007 are not quite ready.
It's doubtful that increased spill may be the culprit, since fall chinook numbers usually peak at Lower Granite in early September, after the spill season ends on Aug. 31.
Flores made it clear that her group supports the draft BiOp with its collaborative approach and its use of the best available science, but she told NW Fishletter that NOAA Fisheries needs to apply the same scientific and legal standards it has used in the hydro BiOp to the upcoming harvest BiOp that will gage impacts of future tribal and non-tribal harvests on ESA-listed stocks like Snake River fall chinook and B-run steelhead.
"But gains from hydro should not be lost on the harvest side," Flores said. However, that doesn't seem to be the way things are heading.
The nearly-finalized harvest agreement among parties to the U.S. v. Oregon process is likely to boost harvest rates of both those listed stocks when overall runs are healthy .
The NWRP letter also calls for the upcoming harvest BiOp to use the same biological analysis that supports the hydro BiOp, since the two are complimentary. For instance, the proposed boost in steelhead harvest is expected to be offset through "compensatory mitigation" developed in the hydro BiOp.
Columbia-Snake irrigators also had a bone to pick with NOAA Fisheries over hydro and harvest issues raised in recent days.
Darryll Olsen, principal consultant with the Columbia-Snake River Irrigators Association, said in his own comments to NOAA Fisheries, that the fish agency should not embed current harvest rates into the BiOp's environmental baseline because that requires "the hydrosystem management system to compensate directly for harvest impacts that are well beyond the scope of any hydro project operations."
Olsen called that a "critical defect" in the draft BiOp, but it's unlikely the agency will heed his criticism.
NOAA Fisheries has already been negotiating with lower Columbia tribes and Northwest states to actually boost harvest rates for fall chinook that would increase impacts on listed Snake fall chinook and B-run steelhead when Mother Nature provides bounteous runs. But when runs are poor, the proposal also calls for less harvest than allowed under the current regime.
In comments made public Jan. 10, the Columbia River Inter-Tribal Tribal Fish Commission included its proposal for future B-run steelhead harvest that has been negotiated through the U.S. v. Oregon process. When the upriver bright-run size (to river mouth) is expected to be greater than 200,000 fish, the treaty harvest rate will be pegged at 20 percent, up from the current 15 percent.
The CRITFC comments also say that NMFS has estimated the harvest-rate increase would reduce the overall survival of the B run by 2.9 percent.
But the tribes' own analysis claims that "relative to rebuilding, reductions in harvest rates at lower run-size abundances are more important than increases in harvest rate at higher run size where effective maximum population sizes are limited due to SAR [smolt-to-adult return rates] survival constraints."
The tribes want future harvest rates included in the new BiOp's baseline, but Olsen and his irrigators feel that including even current harvest rates in the new BiOp "masks the real impacts of the current harvest regimes, and the overall survival of fish through the mainstem hydro system."
"Given that allowing harvest of an endangered species is all but unheard of as part of an ESA recovery plan," the irrigators said, "further assessment is warranted of the recovery benefits that would accrue if NOAA Fisheries curtailed further harvest regimes."
They also said the new BiOp should spell out the biological benefits and costs of reducing harvest compared to other hydro-operation measures. -B. R.
 Latest Water Supply Forecast: 95 Percent Of Average At The Dalles
The Jan. 8 water supply forecast from the National Weather Service's Northwest River Forecast Center has pegged the January-to-July water supply at about 95 percent of average at The Dalles and 98 percent at Grand Coulee.
That's despite plenty of precipitation this month that, so far, includes more than an inch in the Columbia Basin above Coulee--101 percent of average, and 111 percent at The Dalles.
Other river basins in the Northwest are faring much worse this winter. On the Snake River, Brownlee Reservoir inflows for April through July are estimated to be about 70 percent, while further downstream, the January-to-July flows at Lower Granite are expected to be around 91 percent of average, thanks to plenty of snow in the Clearwater drainage--103 percent of the average snow-water equivalent for that region--and the Salmon River Basin is 116 percent above average.
January-to-July inflows to Montana's Libby and Hungry Horse reservoirs are estimated at 95 percent and 88 percent respectively, with less-than-average snowpack in most western Montana basins. However, the Kootenai River Basin has 102 percent of its normal snow-water equivalent at this time.
Most Oregon basins are showing plenty of snow and running well above average, including the Umatilla, with 123 percent above average, and the John Day Basin, at 117 percent of average.
In Washington, the Olympic range has nearly twice its average snowpack for this time of year, while the Upper and Lower Yakima basins are running well above average as well, at 112 percent and 122 percent of average.
The Columbia, above Methow, is just one percent above average for this time of year, but Cascade drainages near Seattle are 136 percent of average, while the Skagit in the north Cascades is running 116 percent of average snow-water equivalent. -B. R.
 NOAA Fisheries Wants Comment On Sea Lion Assessment
NOAA Fisheries announced Jan. 17 it is soliciting public comment on four potential alternatives to reduce marine mammal predation on ESA-listed salmon and steelhead below Bonneville Dam.
The agency's assessment is the latest step in a process that began in 2006 when Washington, Oregon and Idaho filed requests to kill some of the predatory sea lions.
The agency is recommending an alternative that would allow the states to kill up to 30 animals a year, if the marine mammals cannot be deterred by non-lethal means.
Other alternatives include: take no action; use only non-lethal deterrence; and a more draconian one similar to what the states have already suggested--killing up to 150 animals a year within five miles of the dam.
Washington Congressman Doc Hastings (R), said he was encouraged that the fisheries service recognized the need for lethal removal. Hastings, along with fellow lawmaker Brian Baird (D), co-authored legislation to expedite federal permits for lethal removal of some sea lions, but it has not got out of committee.
"I'm hopeful this process will move forward quickly to give state and tribal officials all the tools they need to stop the feeding frenzy," Hastings said in a Jan. 17 press release.
Lower Columbia tribes also supported the lethal removal of pesky sea lions. "Today NOAA took an important step toward giving fisheries managers a critically needed tool to protect the salmon," said Fidelia Andy, chairwoman of the Columbia River Inter-Tribal Fish Commission. "Lack of action toward the real and immediate threat of sea lion predation is unacceptable. We don't want another Ballard Locks-like debacle. We refuse to allow Columbia River spring chinook to be driven into extinction as the Lake Washington steelhead were in the 1990s."
The Corps of Engineers has estimated that sea lions near Bonneville Dam have been chewing their way through 3 to 4 percent of the spring chinook run annually in the past few years. -B. R.
THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.
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