[2] BiOp Judge Nixes Call To Boost Bonneville Spill

On Feb. 22, U.S. District Court Judge James Redden upheld a plan to roll over 2007 hydro operations for ESA-listed fish for this year.

Last December, federal attorneys offered the rollover deal to plaintiffs in the ongoing BiOp litigation, contingent on plaintiffs agreeing not to file a motion to change 2008 operations. The feds said they were strapped for manpower and doubted they could meet the deadline for writing the new BiOp if they had to deal with a motion for changing hydro operations at the same time.

But plaintiffs, led by the state of Oregon, argued that one item still needed to be changed. At a Feb. 20 status conference, they argued that a dissolved gas monitor below Bonneville Dam was not reliable and should not be used to gauge the amount of dissolved gas created by the spill at the dam.

They cited a Feb. 19 analysis by the Fish Passage Center that estimated another 800 Kaf of spring and summer spill at Bonneville could be used to help pass fish without any harmful effects from dissolved gas downriver.

But federal attorney Coby Howell argued that the plaintiffs had presented no evidence of biological benefits to fish from added spill. The Corps of Engineers has previously found that spill was not the best way to route smolts past the dam, but that the newer modification called the corner collector provided essentially 100-percent survival.

Judge Redden agreed with the feds, saying, "There was no convincing argument that the use of the Camas/Washougal gauge would significantly reduce the likelihood of survival of listed species migrating over Bonneville Dam."

He said in his Feb. 22 decision letter that he wasn't persuaded that "tweaking" the spill operations would provide any measurable benefit to fish.

The added spill would have amounted to about a 6-kcfs increase during the summer period, about a 5-percent boost, and would have cost BPA about $3 million.

The judge also denied a request by the state of Montana and the Kootenai Tribe to implement an action designed to flatten flows from the state's largest reservoirs to aid resident fish. The action will be included in the new BiOp slated for release May 5.

The judge said he was sympathetic, but wasn't convinced that the change in reservoir operations was necessary to prevent irreparable harm to the species.

However, granting their request would result in the "piecemeal implementation" of the new BiOp, which "has yet to be finalized, challenged, or subject to judicial review." -B. R.

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