[2] Enviros, Oregon Call For Even More Spill, Flow In 2009 Dam Operations

Environmental and fishing groups, along with the state of Oregon, have asked for even more spill at Columbia and Snake River dams than BiOp Judge James Redden has OK'd for the past three years, according to a motion for preliminary or possible permanent injunction filed Nov. 25 in Federal District Court in Oregon.

The groups want 24-hour spill at all dams, to be curtailed only by dissolved gas limits, and have called for emptying Montana reservoirs faster than specified in the new BiOp.

They want to draw down John Day Reservoir to Minimum Operating Pool, which would have most mainstem irrigation pumping stations sucking air during the fish migration season. Currently, the pool is operated at Minimum Irrigation Pool, about five feet above MOP.

In addition, the motion wants mainstem flow targets to be met on a weekly basis and a new agreement with Idaho Power to add 110 KAF of spring flow augmentation and 237 KAF summer flow augmentation, along with any other steps, "including purchase of additional water for flow augmentation and reservoir drawdown, as may be necessary" to meet their flow volume and water particle travel-time targets.

The motion also calls for the feds to implement all other elements of the 2008 BiOp, along with the agreements with tribes and states that traded BiOp support for hundreds of millions of dollars worth of habitat and hatchery projects.

The plaintiffs have also called for implementation of all the projects submitted by Oregon and the Nez Perce Tribes to the Northwest Power and Conservation Council, even though the two sovereigns never reached agreements with the federal agencies.

The injunction is supported by declarations submitted by retired USFWS biologist Fred Olney and ODFW Chief of Fisheries Ed Bowles, who cited documents as old as the 1995 hydro BiOp to support the case.

The groups also pointed to a recent review of spill and transportation by the Independent Scientific Advisory Board to bolster the case for more spill.

Federal scientists had already responded to the spill issue, and are still working on a review of the subject that is expected to reflect their latest findings.

However, according to the schedule developed by the court, federal attorneys won't be responding to the enviros' motion until Feb. 13, after Redden is likely to rule on the legality of the 2008 BiOp.

Some parties to the litigation have questioned the legality of the injunction schedule, since it would allow the plaintiffs to argue from extra-record materials that were not part of the administrative record used in the BiOp.

In the BiOp litigation, Judge Redden turned down a request by federal attorneys to throw out the extra-record declarations by Olney, Bowles and others that were used to support plaintiffs' arguments.

Redden also allowed to stand an amicus brief submitted by the Nez Perce Tribe alleging the new BiOp was deficient because it did not look at dam breaching as a fish-recovery option.

The feds had argued that since the plaintiffs hadn't brought up the breaching argument in their complaint, the Nez Perce brief should not be allowed. But Redden said the breaching issue had been part of the remand process since the 2000 BiOp included breaching issues in its jeopardy analyses.

Redden also noted he had previously warned defendants after tossing the last two BiOps that they should be "aware of the possibility of breaching the four dams on the lower Snake River, if all else fails."

BPA Administrator Steve Wright and action agency executives Brig. Gen. William Rapp (Corps of Engineers) and Bill McDonald (Bureau of Reclamation) expressed support for the new BiOp in a Nov. 26 joint press release.

"We have not had time to review the plaintiffs' filing, but we are very pleased with the widespread regional support we have received in recent court filings," they said. "With our tribal and state partners, we support the actions in the biological opinion and their contribution to our mutual goals of a healthy environment and a healthy economy." -B. R.

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