NW Fishletter #257, February 9, 2009
  1. Feds Say Big Sockeye Returns Had Little To Do With Spill
  2. More Questions Than Answers Over Salmon/Whale PCB Study
  3. States Reach Split Decision Over TDG Monitoring
  4. Salmon Treaty's Endowment Fund Sinks With Stock Market
  5. Big Gaps In New EPA Report On Columbia Basin Toxics
  6. Lohn Resigns As Regional NOAA Fisheries Administrator
  7. Judge Rules Against Stay To Halt Lethal Action Against Sea Lions
  8. Tacoma, Skokomish And Agencies Settle Cushman Disputes

[1] Feds Say Big Sockeye Returns Had Little To Do With Spill

Last year's sockeye run on the Columbia River--230,000 were counted at Bonneville Dam, making it the largest return since 1959--was the result of factors outside of the hydro system, according to a new study by NOAA Fisheries. They said the good return on the Snake--the highest since the early 1970's--was likely due to factors outside the basin as well.

The feds' latest analysis flies in the face of a Fish Passage Center analysis last summer that found good inriver conditions like increased spill at lower Snake dams in 2006, were likely the reasons for the 800 or so ESA-listed sockeye making it back to Idaho in 2008.

A preliminary federal analysis responded to the FPC last July 24. Then the FPC released a review of the feds' analysis on Aug. 6, which echoed their position that inriver conditions, not ocean conditions, were responsible for the big numbers in 2006.

The feds' Feb. 6 memo from the Northwest Fisheries Science Center in Seattle said the sockeye return rates from 1996 to 2008 correlated weakly with the ocean indicators developed by the agency, but they also noted that those indicators didn't include the food resources important for young sockeye.

They also found a strong correlation between estimated return rates of the Upper Columbia and Snake stocks, which suggests that changes in ocean productivity led to the big returns last year.

In addition, the scientists found no correlation between sockeye salmon SARs [smolt-to-adult return rates] and indices of mainstem flow and percentage spill at dams between McNary and Bonneville.

"This suggests that the primary factors influencing the variation in annual adult returns acted downstream from Bonneville Dam, and on both stocks in common," said the memo.

In fact, the feds said the return rates to the Upper Columbia, where most of last year's 230,000 sockeye were bound, showed a "significant negative relationship" with increased spill rates between Rock Island and McNary dams.

"This finding is in opposition to a large body of information indicating that increased spill at dams, within limits, improves the survival of juvenile steelhead and chinook migrating during spring (e.g. Muir et al 2001; Ferguson et al. 2005). It merits a more detailed review and analysis of specific project operations and passage conditions."

The study found a positive correlation between spill at lower Snake dams and estimated juvenile survival, "but the correlation was not significant."

Nor did the feds find a significant relationship between juvenile survival and flow, percentage spill or water temperature in the rest of the mainstem Columbia.

Most of the sockeye from the Snake were transported in recent years, but so few returned that agency scientists could not determine whether barging helped or hindered the Snake run, which has been kept going by an expensive captive broodstock program.

The feds said last year's good return to Idaho's Redfish Lake was partly due to increased smolt production in 2006.

They also said ocean harvest regimes had not changed much, so that wasn't a factor, either.

Cooler water conditions for returning adults also helped last year's return to Idaho, they said, when more than 75 percent of the adults counted at Lower Granite dam made it the last 450 miles of their migration to the Stanley Basin. In some recent years, less than 10 percent have made it.

The feds said that SARs for the Upper Columbia sockeye were generally a lot higher because migration distances were shorter, and most of the fish were of wild origin.

They estimated that Upper-C sockeye SARs in recent years have ranged from 0.67 percent to 8 percent, while Snake sockeye SARs varied from 0.07 percent to 0.7 percent. -Bill Rudolph

[2] More Questions Than Answers Over Salmon/Whale PCB Study

Some Northwest scientists are speculating Puget Sound killer whales may be getting a double dose of lingering organic poisons because they must eat twice as much salmon as their northern cousins to obtain the same level of nourishment.

Other Northwest scientists say the analysis is a start, but needs much more information before any such conclusions can be reached.

The researchers' speculations were included in a recent article in Environmental Toxicology and Chemistry, a peer-reviewed journal. Lead author was Donna Cullon, from the Institute of Ocean Sciences, Fisheries and Oceans Canada, in Sidney, British Columbia.

The authors said their data suggest the southern resident whale population may be ingesting four times as much PCBs [polychlorinated biphenyls] by body weight as the northern B.C. orca population. The Puget pods are listed for protection under the ESA.

PCBs were used widely in the electricity utility industry for their cooling properties, but have been banned since the 1970s.

In humans, PCBs may be a carcinogen, and there is evidence they can hinder learning development in children. For marine mammals, some evidence exists that high PCB levels can harm immune systems.

Scientists have found that over the years, PCBs ending up in oceans have migrated to more northern latitudes, where they enter the complex food webs as far north as the Arctic, which Cullon's paper noted.

"The present study underscores the global nature of contaminant dispersion with chinook salmon acquiring the majority of their POPs [persistent organic pollutants] during their time at sea," it said.

But with the disappearance of seven southern resident orcas in the past year, including two reproductive females, scientists have been taking a closer look at the whales' diet, hoping to find a clue to their decline. Some whale advocates have been quick to blame reduced chinook runs for the problem, including those on the Columbia River. The possibility of adverse effects on whale populations by federal dams on the Columbia and Snake rivers has been addressed in the latest hydro BiOp.

The Cullon et al. paper included data collected by several Canadian and U.S. scientists on PCB levels found in chinook smolts and 24 adult salmon in 2000 and 2001 that ranged from Puget Sound to northern B.C.

Finding different PCB levels in the chinook isn't news. Washington Department of Fish and Wildlife researcher Sandy O'Neill released analyses on PCB levels in 2005, some of which are included in the new paper.

O'Neill found that Puget Sound chinook contained nearly three times as many PCBs as chinook from northern B.C. or Alaska, with levels in the Sound's resident chinook even higher. At that time, she said it would take decades for PCB levels in local fish to diminish by much. Although levels in urban areas will slowly go down, various biological transport mechanisms would raise levels in more pristine areas of the coast, as when wild salmon return to their spawning grounds.

O'Neill told NW Fishletter that a new paper will be out soon that is a much more up-to-date analyses of PCB levels in local salmon. She noted that a good percentage of fall chinook from Puget Sound hatcheries stay in the area most of their lives, not just the late releases for the blackmouth fishery, and these are the fish that tend to show the highest levels of PCBs, since the local herring stocks on which they feed are still showing high levels relative to herring populations in other areas.

What is new about the latest PCB paper is the sense of urgency accompanying it--including a press release sent to the mainstream media that churned up plenty of interest with the headline, "When Food Can Kill..."

Unfortunately, the press release contained inaccuracies. NOAA Fisheries orca researcher Brad Hanson said it was misleading because "it states as facts things that in the paper were speculative."

Alas, many of the news stories stemming from the article's release, from The Seattle Post-Intelligencer to Scientific American, reported some of these speculations as facts, including the paper's estimate the southern residents consume about 6.6 times as many PCBs as the northern pods.

But a closer look at some data displayed in the article doesn't seem to fit its overall message, since it showed that chinook from B.C.'s lower Fraser River carried higher PCB levels than Duwamish River chinook from mid-Puget Sound, but lower levels than salmon from the Deschutes River at the southern end of the Sound.

The lowest levels were found in chinook from the Johnstone Strait area, about halfway up the British Columbia coastline. These fish also carried about twice as many lipid reserves as the other chinook examined.

NOAA researcher Hanson and others have been trying to pin down just where most of the salmon come from that make up the southern orca diet. He and others have found that when the whales are foraging in the San Juan Islands during summer, it seems most chinook they consume come from the Fraser River, and not Puget Sound, as was widely believed.

But the southern residents have a wide range. Two of the three local pods head offshore in the winter as far south as California.

That's when things get complicated. Though Hanson said it's important to study the contaminant patterns in salmon, especially ones the whales eat, he noted the situation is much more complex than the Cullon et al. paper seems to indicate.

"It is important to realize that the whales eat a variety of stocks and eat different stocks in different times of year," Hanson told NW Fishletter by e-mail.

"The stocks samples in the Cullon et al. paper may not be representative of the overall diet of either the N or S population. For example, the salmon collected for this study were all sampled in October--and therefore are predominately fall run fish. These are not likely to be the same fish that the whales are eating during the summer, especially May-July, or in the winter.

"We therefore think that it is misleading to make statements about how diet affects POP concentrations in the S versus N populations based on salmon samples taken only in one month," Hanson said.

Hanson also noted a larger question researchers are grappling with--why the transient orca populations on the West Coast, which have shown the highest PCB levels of any regional whale population, seem to be maintaining steady to growing overall numbers. A dead transient that washed ashore near Port Angeles a few years ago pegged scientists' instruments they used to measure PCB levels.

The transient whales' diet includes seals and sea lions that contain very high levels of PCBs. The northern and southern residents don't eat marine mammals.

Hanson said researchers have also found lower PCB levels in salmon during the winter off California than a study cited in the Cullon et al. paper. Columbia River and Sacramento River chinook contain about half the PCB levels of the Puget Sound chinook. -B. R.

[3] States Reach Split Decision Over TDG Monitoring

Last month, Washington and Oregon came up on opposite sides of another fish-management issue. It's a fairly common occurrence as litigation over the hydro BiOp heads for a showdown in early March, when the two states square off in oral arguments over the latest fish plan.

After more than a year of meetings, a group of water quality managers from Washington announced Jan. 12 that it would not change its 115-percent total dissolved gas [TDG] water quality criterion for dam forebays in the Columbia and Snake rivers--the level the BiOp calls for to manage spill during the fish passage season.

The Corps of Engineers is applying for a new 5-year waiver of Clean Water Act standards to allow the BiOp-level spill at dams. But added spill usually boosts total dissolved gas levels above the legal limit of 110 percent. Until now, the waiver has capped forebay limits at 115 percent and tailrace limits at 120 percent.

All parties support the waiver. But salmon advocates and some conservation and fishing groups are lined up behind technical reviews supplied by the Fish Passage Center that say removing the forebay monitors would allow more spill and provide a significant boost to juvenile fish survival. And for years, state fish agencies and tribes have argued that because of their location, some of the monitors aren't producing reliable TDG readings.

The two states have different ways to deal with changes to the current TDG limits--Washington would implement a complicated rule change, and Oregon would grant waivers.

Using analyses from the Fish Passage Center, Oregon fish managers had already called for removing forebay gas monitors at mainstem dams in hopes of wringing a little more spill for fish at the dams. It was an approach other plaintiffs endorsed in the current litigation over the 2008 BiOp.

But in the final analysis, most participants said any potential fish benefits were lost in the "decimal dust" of the methodologies.

Washington's Department of Ecology decided changing the standard wasn't worth it. According to a bi-state report issued last week, "Ecology determined that there would be a potential for a small benefit to salmon related to fish spill if the 115-percent forebay criterion was eliminated, but there would also be the potential for a small increase in harm from increased gas bubble trauma."

The state agency said "the weight of all evidence from available scientific studies clearly points to detrimental effects on aquatic life near the surface when TDG approaches 120 percent.

The detrimental effects ranged from behavior changes to high levels of mortality after a few days. There were fewer effects on aquatic life at 115 percent TDG. Ecology strongly encourages implementing actions that increase salmonid survival without further increasing total dissolved gas."

Ecology outlined the administrative procedures that would be required to implement a change, which included a cost-benefit analysis, a small business economic impact statement and a possible environmental impact statement.

The bottom line, for Ecology--"Based on the information in this document, Ecology does not believe the overall benefits of additional spill versus additional risk of gas bubble trauma are clear and sufficient for a rule revision."

Oregon water quality managers concluded differently.

They saw no need to maintain the forebay monitors in 2009 because they say the requirement "will not cause excessive harm to the beneficial use, aquatic species, in the Columbia River during fish passage spill season."

The review by the two states found that spill at the dams would increase by 1 to 2 percent without the forebay monitors and could boost juvenile chinook survival by less than 1 percent, but might have small negative effects on Snake River steelhead.

The report noted that ODEQ and Ecology used four different methods provided by fish management agencies to estimate fish survival--with a high level of uncertainty and controversy associated with each one.

The process to sort out this issue began in November 2007, and generated a fair amount of heated discussion at meetings that culminated last summer, when both NOAA Fisheries and the Corps of Engineers criticized a Fish Passage Center analysis of a spill option that wasn't even under consideration.

The FPC modeled an additional hydro scenario to the two in question--the current spill program with 115-percent forebay/120-percent tailrace limits, and spill with only a 120-percent tailrace limit. Depending on the dam, the change could be significant between the two operations, especially at Lower Monumental Dam on the Snake, and Bonneville in the lower Columbia.

However, the FPC's extra analysis looked at what could be gained in fish survival from an operation that spilled to 120-percent of TDG limits, but was not constrained by what the FPC called "planned operations," a situation never clearly defined in its submissions.

FPC said such a scenario could boost spring chinook survival to more than 90 percent from 65 percent under the scenario that was limited by planned operations.

The two federal agencies said the FPC analysis hugely overstated the amount of spill that was available to help juvenile fish pass the dams.

BPA power analyst Roger Schiewe said the FPC's analysis had stripped out what is called "excess generation spill," spill that might occur from lack of marketing or be needed when turbines go out. In other words, it didn't reflect the reality of real-time hydro operations.

In comments submitted to the water quality agencies, BPA said its own hydro model "properly reflects the reality of the hydro system. At times, the hydro system can produce more energy than can be safely transmitted to serve load in the region or distant power markets. In addition, there are times when the hydro system can generate power in excess of demand. It would be irresponsible for these realities to be ignored and would distort the results."

Back in March 2008, the Corps of Engineers said the FPC methodology left out many of the factors included in its own hydro model and called the FPC result "unreliable." The Corps' maximum additional spill was about half of the FPC's 58 million acre-feet that could occur if all limitations but the 120-percent tailrace limit for TDG were removed, a minimum generation condition.

In high water years, the Corps figured that another 6 MAF could be spilled if the 115-percent TDG standard were removed. In low water years, that went down to 5.2 MAF.

More important, they said the kind of water year (low versus high) would account for more than an 11-MAF difference in the additional spill volume that could occur.

The Corps and NOAA never modeled the FPC's added scenario because they felt it didn't reflect a reasonable possibility. But for operations in a high-flow year, they estimated only a 1.9-percent boost in spring chinook survival if dams were managed without the 115-percent forebay limit, compared to the FPC's estimate of a 13-percent increase in survival.

NOAA Fisheries' COMPASS model estimated the 120-percent-only scenario would produce only a 0.922-percent increase for Snake spring chinook and a 1.1-percent decline in survival of Snake steelhead, because the slight increase in spill meant fewer of them would be routed to barges. -B. R.

[4] Salmon Treaty's Endowment Fund Sinks With Stock Market

The $216-million endowment fund used by the U.S. and Canada to fund research projects helping to implement a salmon treaty has lost more than 30 percent of its value during the past year.

Since it sunk below its original $140-million basis, it's likely that no funding for research projects will be awarded this year. A final decision will come in April.

According to Angus MacKay, a staffer at the Pacific Salmon Commission in Vancouver, B.C., the endowment provided nearly $9 million for enhancement and research work in 2008.

"We thought we were ready to face any eventuality," MacKay told NW Fishletter last week. He said the fund is invested very conservatively, like university endowments.

Unfortunately, many of those funds have lost at least as much in value since the economy tanked.

MacKay said one of the treaty fund's rules calls for not releasing any money for projects if the endowment falls below its original $140-million level. The bilateral committee that governs the fund will meet in mid-April to make the final decision.

But with financial markets still in disarray, the immediate situation looks pretty bleak. The topic is sure to make the agenda at the salmon commission's annual meeting in Portland Feb. 9-13.

U.S. salmon commissioner Larry Rutter, who sits on the endowment committee, said it is likely some important work may not be funded this year, including retooling the computer harvest model used by both countries, as well as the launch of a $10-million study of "sentinel stocks" that is called for in the latest treaty agreement.

The 2008 agreement calls for spending $2 million a year for the next five years from the endowment (both northern and southern boundary funds) to fund rigorous spawning escapement assessment programs in 10 stocks from northern B.C. to Oregon.

It was reported that the sentinel stocks program began as a way to satisfy the state of Alaska's concern that poor escapement and coded-wire-tag data for chinook stocks on the west coast of Vancouver Island had led to a perception that the stocks there had a "conservation" problem. Canada broadened the program to include stocks harvested in all fisheries.

U.S. Commissioner Rutter said they were looking for a "patch job" to fund some of the work from other sources.

"This [decline] will have a lot of impacts," Rutter said. "It's quite substantial."

He said it was not only a financial calamity from declines in stocks and bonds held by the endowment, but about 35 percent of the funds had been in Canadian denominations. Since last May, when the U.S. and Canadian dollars were at parity, the Canadian dollar has dropped about 25 percent in value against the U.S. dollar.

However, Rutter said new work associated with the coded-wire-tagging program will be funded from another source of "new money." He said that some multi-year habitat enhancement work that would normally be funded by the endowment could be more easily postponed.

About 30 percent of the endowment is in a Canadian indexed bond fund, and 70 percent are in equities split between the U.S. and other countries to reduce risk. -B. R.

[5] Big Gaps In New EPA Report On Columbia Basin Toxics

The regional EPA office has released a new report on toxic contaminants that is part of a larger plan to clean up some of the dirtiest waters left in the Columbia Basin.

According to the executive summary, the report focuses on four contaminants--mercury, DDT, PCBs, and PDBEs (flame retardants), "because they are found throughout the Basin at levels that could adversely impact people, fish and wildlife." Some of these compounds have been banned for more than 30 years, but are still found throughout the basin.

The report also identifies major information gaps that need to be filled before impacts to the ecosystem are analyzed and a plan is developed to prioritize actions to reduce toxic levels.

Some of these toxics are from regional sources, but most heavy metals found in the basin's fish and bird populations, such as mercury, enter the region via the atmosphere from global sources. The EPA report estimates that 11,500 pounds of mercury enters the basin by air every year, with only about 15 percent coming from local sources.

DDT was banned in 1972, but agricultural runoff is still its primary source in the river, though DDT concentrations in fish, wildlife and most tributary sediments have shown declines over the past 20 years.

Major changes in irrigation practices in the Yakima Basin have helped reduce DDT levels, but other places, such as the reservoir above Bonneville Dam, are still hot spots where white sturgeon have shown relatively high levels of the long-banned but persistent pesticide.

But other animals have shown significant improvement in their numbers. Eagle populations in the lower Columbia have rebounded as DDT levels declined, growing from 22 nesting pairs in 1980 to 133 pairs in 2006.

PCBs were in wide use by the electric utility industry for their cooling properties, until they were banned in the 1970s, but were also found in hydraulic fluids and other petrochemical products, fire retardants, plastics and paints. They proved so popular that 700 million tons of PCBs were produced in the U.S. before the ban took effect.

PCBs concentrate in the fatty tissue of animals and can be passed from mother to young. They have been linked to cancer, liver damage, neurological impairment and reproductive problems,

According to the report, PCBs enter the basin's ecosystem from disposal sites along the lower river, at dams, or via the atmosphere from other parts of the world. Stormwater runoff and discharge are other sources that scientists are increasingly concerned about.

But PCB levels in Columbia Basin fish are declining, though some still show amounts of health concern, such as sturgeon behind Bonneville Dam. Recent studies have shown that juvenile fall chinook in the lower Columbia near the mouth of the Willamette show higher levels of PCBs than fish upriver from there.

Other studies have shown much higher PCB levels in water below the dam, with the Portland/Vancouver urban areas likely the principal source.

"There are currently no data to indicate whether PCB levels in the mainstem of the Columbia River are increasing or decreasing," said the report.

But at some sites, the report noted, PCB levels in some juvenile salmon were just as high as those found in young salmon near a Superfund site in Seattle's Duwamish waterway.

Another area of increasing concern is how much compounds, known as PBDEs, are showing up in the environment. Used as flame retardants in plastics and fabrics, the report says they are released slowly in the environment and show up everywhere, including in fish. Though the exact mechanism by which they reach the river is not known, municipal wastewater is high on the list of suspects.

PBDEs have shown to cause adverse health effects in animals, but no studies have been conducted on humans. Nor is their use currently regulated.

But like the other toxins under review, there is little trend data available to determine whether PDBE levels are going up or down in the basin's juvenile salmon, sturgeon, mink, otters and Asian clams. But resident fish, bald eagles and osprey are showing increases.

PCB levels in resident fish, eagles and osprey, mink and otter populations are showing declines, but no trend data is available for salmon, sturgeon, or resident fish.

Mercury levels in resident fish, eagles and osprey are rising, but no trend data is available for the other animal populations under review.

DDT and its breakdown products are declining in resident fish, birds, and fish-eating mammals, but no trend data has been collected for salmon, sturgeon, or clams.

Many sites in the basin have been in various stages of a clean-up process for years, and EPA has worked with states in the Coeur d'Alene Basin in Idaho, the Upper Columbia above Grand Coulee, the Clark Fork and Flathead basins in Montana.

The agency has also worked with the states to help clean up contaminated sediments in the Portland harbor, near Bonneville Dam, and at the Alcoa plant in Vancouver, Wash. -B. R.

[6] Lohn Resigns As Regional NOAA Fisheries Administrator

Bob Lohn has resigned his position as regional NOAA Fisheries head, effective Jan. 20. He served there since 2001, appointed by the Secretary of Commerce, and has led the agency through litigation of several Columbia River salmon plans, the last of which will be decided sometime this spring.

Deputy Regional Director Barry Thom will serve as acting regional administrator until a new name is announced.

The Northwest region is the only one of the six regions in the country where the regional administrator's position is a political appointment.

NOAA spokesman Brian Gorman said Lohn may resurface in some capacity at NOAA. He also said Lohn has had discussions with the Obama transition team about taking the Northwest regional administrator's position out of the political arena.

But despite Lohn's lobbying, the position remains a political appointment and plenty of Northwest policy folks are jockeying for the job.

It was reported that some interested in the position include: Lorri Bodi, BPA senior policy analyst, Donna Darm, head of the Northwest regional NOAA Fisheries Office of Protected Resources; Bruce Suzumoto, head of NOAA Fisheries' hydro division in Portland; Curt Smitch, retired head of the Washington Department of Fish and Wildlife and one-time chair of the Pacific Salmon Commission; Bob Turner, one-time head of WDFW, now a NOAA staffer; Ed Bowles of ODFW; Tom Karier, a Washington representative to the Northwest Power and Conservation Council; and attorney Mark Stermitz, who represents the state of Montana in the current BiOp litigation.

Sources also said that Washington Sen. Patty Murray (D) will have the last word in picking the next regional head.

Lohn served as head of the Northwest Power and Conservation Council's fish and wildlife division before moving to NOAA Fisheries, and served as the council's general counsel from 1987 to 1994. He also ran BPA's fish and wildlife division.

A native of Montana, Lohn attended Harvard University, served as an officer in the Navy, then returned to earn a law degree from the University of Montana. Following graduation, he became counsel for the Governor of Montana and taught law at the University of Georgia, before becoming chief of the legal staff in San Francisco at the 9th U.S. Circuit Court of Appeals. He later practiced law in the Bay area, before heading north to work for the Power Council in 1987. -B. R.

[7] Judge Rules Against Stay To Halt Lethal Action Against Sea Lions

A federal judge has again OK'd a plan to shoot salmon-munching sea lions at Bonneville Dam, after plaintiffs filed for a stay while their appeal wends its way through the 9th Circuit Court.

Attorneys for the Humane Society argued that they had a strong likelihood of winning the case on appeal, but Oregon District Court Judge Michael Mosman felt otherwise. The judge didn't buy a last-minute declaration filed by marine mammal expert Andrew Trites that argued the 3 or 4 percent impact of the sea lions on the spring chinook run "will not have any measurable impact on the decline or recovery of salmonids above the Bonneville Dam."

The wild component of the spring run is listed for protection under the ESA.

Plaintiffs also argued that fishermen will be allowed to take many more fish than marine mammals. This year's run is estimated at nearly 300,000 fish. Harvest managers have planned commercial, sport and tribal impacts of about 13 percent.

But federal attorneys argued that predation by sea lions is getting worse every year, and that a recent decision (Winter v. NRDC) in the US Supreme Court makes it even tougher for plaintiffs to argue for injunctive relief. The Supremes ruled that the standard for injunctive relief was too lenient and that "a preliminary injunction is an extraordinary remedy never awarded as of right."

The feds also argued that if the judge allowed the stay, the continued predation by the sea lions would cause "irreparable harm" to the listed spring chinook.

Last April, the 9th Circuit stayed the lethal removal of some sea lions at Bonneville Dam. But the feds argued that the Supreme Court has now rejected the argument used by the Niners in that decision, which was to affect the 2008 season only, because the Niners' panel expected the case to be resolved on its merits before this year's run showed up. Judge Mosman ruled in favor of lethal removal last November 25.

Humane Society attorneys have appealed Mosman's latest decision to the 9th Circuit.-B. R.

[8] Tacoma, Skokomish And Agencies Settle Cushman Disputes

Tacoma Power, the Skokomish Tribal Nation and a number of resource agencies signed a set of agreements Jan. 12 resolving the tribe's $5.8 billion damage and trespass claims over the city's 131-MW Cushman Hydroelectric Project and establishing new, 40-year terms for the Cushman license, which has been in litigation since it was issued in July 1998.

Compensation to the tribe will include: 1) two, one-time cash payments--$6 million for damages and another $5 million for damages and the mitigation of impacts of flooding on the tribe and its members; 2) land transfers valued at $23 million including Camp Cushman on Lake Cushman, the 500-acre Nalley Ranch and Saltwater Park on Hood Canal; and 3) a 7.5 percent annual share of the net value of the electric production from Cushman's No. 2 powerhouse. The share is capped at not less than $300,000 nor more than $500,000 over the first 20 years; and $625,000 and $900,000, respectively, for the following 20 years, with the maximum subject to an inflation escalator.

Although it is subject to some variation, Tacoma estimates the overall present cost to implement the package over 40 years will be $40 million, although that does not include the value of lost generation.

About 100 people attended a signing ceremony in Tacoma Jan. 12, where a half dozen speakers talked of a "new start" for the two adversaries.

Rep. Norm Dicks called the settlement a "victory" for both the city and the tribe, and noted that neither former Governor Booth Gardner nor then-state Ecology director Christine Gregoire were able to find the path to a settlement. But ultimately, "the numbers were so staggering, there had to be a compromise."

Dicks stressed another part of the package in connection with the Army Corps' ongoing "general investigation" to determine what measures should be taken to restore the ecosystem and prevent flood damage in the wider Skokomish watershed. Under the agreement, Tacoma is committed to contribute up to $1.2 million towards the study and to actively lobby Congress for additional funding. If within 15 years Congress does not authorize funds for measures identified in the study, Tacoma has agreed to contribute at a rate of $600,000 every five years.

NMFS regional administrator Bob Lohn also spoke. He praised the settlement, saying "there is great soundness in what we've worked out."

Besides the tribe, Tacoma and NMFS, the parties include US Fish & Wildlife, US Forest Service and the Washington Departments of Ecology and Fish and Wildlife. They've been negotiating since January 2007 pursuant to the 9th Circuit's mediation program.

Negotiations ensued after the parties reached a kind of legal stalemate. The tribe lost several appeals of its $5.6 billion damage claim alleging harm done by the project, but, at the behest of the 9th Circuit, was eligible to pursue the action in US Court of Federal Claims. Meantime, the 9th Circuit, in a case brought by the US against Tacoma on behalf of the tribe, affirmed a District Court ruling that Tacoma's condemnation of five parcels was invalid, whereupon the tribe asserted damages.

Challenges to the Cushman license proceeded separately; the DC Circuit remanded to FERC after rejecting Tacoma's claims the new license terms would render the project uneconomic. FERC has already modified the new Cushman license three times since it was issued. It still must approve the new settlement and modify the license accordingly.

William Gaines, Tacoma Public Utilities director, said there were two key elements that enabled the settlement: "dissipation" of the Tribe's legal claims and emergence of the notion that the tribe "wanted the lands back." He said the revenue stream for the tribe is similar to terms found in recent settlements involving Grant and Douglas PUDs, and will help to align the tribe's interest with the city's.

Tacoma frequently stated that under the terms approved by FERC, Cushman would not be economically viable. But Gaines said under the new proposed terms, the project would be viable. He did not have a figure for the cost of power, but said it would be competitive with Tacoma's other resources. Tacoma generation manager Pat McCarty said the key difference in the settlement as compared to the license with the terms required by NMFS and the Forest Service is "the certainty of the flushing flow component." The license included a term calling for an increased instream flow level of 240 cfs or inflow, which was manageable, but the provision also allowed the tribe and agencies to vary other flows. "That was the difficult thing." The settlement adopts a complex, three-part flow plan that includes a set of provisions for "base flows," channel formation flows and mainstem flush flows that are biologically-based but within established constraints, McCarty said. The settlement adopts terms that will replace the 240 cfs minimum flow requirement.

Joseph Pavel, Skokomish Tribal Nation Council Chair, said he did not feel the settlement was equal to the tribe's damages, but said it was time "to get a settlement on the ground" instead of pursuing the controversy in the courts. He said return of the lands, as well as the new flow regime, were substantial factors in his decision to sign, while the promise of revenue sharing was an important trade-off, along with the city's commitment to help lobby Congress to fund the watershed improvements. He said the tribe's biggest sacrifice was forgiving past damages. "We can't pursue claims, notwithstanding new information."

Delores Gleason, 71, of the Skokomish Tribe's Allen Family, said the settlement will help clean the river and Hood Canal "and enhance things to make it joyful and pure again."

A significant development that got the parties to the negotiating table was when the DC Circuit Court of Appeals ruled Tacoma must meet its legal responsibilities to both the environment and the tribe as expressed in the federal agencies' mandatory licensing terms, regardless of the economic impact on the project, said tribal attorney Mason Morisset.

Tacoma's obligation to implement the mandatory conditions set out by the federal agencies, along with the damage ruling, is "what got us before the mediator." He agreed the tribe's biggest concession was "not receiving major compensation for 80 years" of damages, instead settling for a "modest" sum. But he said Tacoma also made major concessions, especially with respect to increased flows and putting millions of dollars into fish passage and enhancement. -Ben Tansey

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