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NW Fishletter #366, February 6, 2017
 Oregon and Conservation Groups File For Injunction
Conservation and fishing groups and the State of Oregon have asked for an injunction to increase spring spill at Columbia and Snake River dams and to postpone capital investments on 11 projects at four lower Snake River dams.
The motion and supporting brief were filed Jan. 9 in the ongoing National Wildlife Federation v. NMFS [01-640] case involving salmon recovery and Columbia/Snake river dams.
The request asks for spill to begin April 3 and extend through June 20 each year until a new plan is approved to replace the 2014 FCRPS BiOp.
U.S. District Judge Michael Simon has given the federal defendants--BPA, U.S. Army Corps of Engineers and Bureau of Reclamation--until the close of 2018 to complete a new BiOp.
The plaintiffs' motion for injunctive relief also asks to stop spending on 11 specific, large capital investment projects at four lower Snake River dams until the federal agencies are in compliance with the National Environmental Policy Act (NEPA).
Simon said the agencies had until 2021 to complete an EIS under NEPA rules.
In addition, the plaintiffs want the court to require the Corps "to obtain permission from the court before beginning any new capital projects or expanding existing capital projects at these dams, pending compliance with NEPA," the motion for an injunction said.
Because the plaintiffs contend that measurable improvements in fish survival are available from increased spill, they want the Corps to provide spring spill on a 24-hour basis to the maximum-permissible levels at eight federal dams on the Columbia and Snake rivers. They are not seeking additional summer spill.
Spill caps, or maximum spill levels, are those that do not exceed state-set limits on total dissolved gas and are consistent with each dam's operational constraints.
The spill requested in the plaintiffs' filings is greater than current FCRPS operations are providing under the 2014 BiOp.
Even the proposed higher spill levels will not achieve the juvenile fish-passage conditions necessary to avoid jeopardy, say the plaintiffs. According to their motion, "passage conditions are confined by the existing configuration of the FCRPS dams and existing state water quality standards."
Terry Flores, Northwest RiverPartners executive director, offered a very different perspective on the proposed 24/7 spring spill operation. RiverPartners is a defendant-intervenor in NWF v. NMFS.
"'Blanket' spill such as that sought by Oregon and the other plaintiffs is a blunt tool that absolutely will increase total dissolved gas throughout the system harming young migrating fish and returning adults that have difficulty finding ladders at the dams and 'fall back' repeatedly, using up their scarce reserves," she told NW Fishletter via email.
In-river passage routes. Credit: E. Bowles
It will "harm fish and undermine all the investments being made by Northwest families and businesses to protect them," Flores said.
Among Idaho, Oregon and Montana (the three states where the eight dams are located), Oregon permits the highest levels of total dissolved gas, which allows for higher spill volumes.
The plaintiffs see increased spill as a short-term measure to "alleviate some of the harm from existing dam operations."
For Liz Hamilton, executive director of the Northwest Sportfishing Industry Association, the spill proposal "is a no-brainer for fish." The sportfishing industry association is a plaintiff-intervenor in the case.
"From our perspective, the best thing that has happened for salmon was when Judge [James] Redden ordered more spill for fall outmigrants in 2006," Hamilton said in a Jan. 9 news release.
"You'd think that the data on the positive response from fall chinook would have NOAA clamoring to do the same for spring outmigrants, but here we are," Hamilton added.
Because there is evidence that some spring juveniles begin their downstream migration before April, the plaintiffs are requesting the Corps initiate juvenile-bypass operations with PIT-tag monitoring at the three Snake River dams instrumented for smolt monitoring starting March 1 of each year, until a new BiOp is in place.
The plaintiffs' request would allow these early juvenile migrants to be tallied and would give the juveniles a better chance of survival by directing the fish through bypass systems rather than sending them through turbines.
In regards to the second part of the motion, to stop capital-investment projects at the four lower Snake River dams, the plaintiffs said that once the estimated $110 million for 11 large project upgrades at the dams is invested, the Corps is far less likely to decide "to waste this very substantial sum through a decision to remove these dams."
The $110 million figure is an estimate based on BPA's 2017-2030 Hydro Asset Strategy.
"The Corps has taken no steps, made no adjustments, and announced no pause in any aspect of its plans to continue investing tens of millions of dollars in capital funds in a long list of projects to upgrade and extend the life of these four dams," the motion for injunctive relief said.
It's business as usual for the Corps and the other action agencies, the plaintiffs argue. The large capital investments are "financially prudent only if the Corps assumes these dams will continue to operate and generate power for decades to come."
The plaintiffs say the continued capital spending prejudices the outcome of the NEPA EIS process and helps create a bureaucratic "steamroller effect."
Northwest RiverPartners' Flores said capital spending on infrastructure projects is necessary to keep the dams operating efficiently and safely.
Other evidence cited by plaintiffs for the perceived steamroller effect are the recently completed EIS public scoping meetings where no mention was made of the court's May 2016 ruling on NEPA and no mention made of any alternative approaches to managing the FCRPS dams to avoid jeopardy to ESA-listed salmon and steelhead.
The federal defendants will respond to the proposed injunction by Feb. 9, if Simon agrees with the reply schedule jointly recommended by both plaintiffs and defendants. -Laura Berg
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