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NW Fishletter #367, March 6, 2017

[1] Arguments in BiOp Case Resume Over Spill, Capital Projects

Both sides of the 2014 BiOp case on the Federal Columbia River Power System and its impact on fish disagreed on the [plaintiff-proposed injunction] to increase spring spill at Columbia and Snake River dams and to postpone capital investment projects at four lower Snake River dams.

Conservation and fishing groups and the State of Oregon asked for the injunctive relief on Jan. 9 in the ongoing National Wildlife Federation v. National Marine Fisheries Service [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.

The motion also asks to stop spending on large capital investment projects at lower Snake River dams until the federal agencies are in compliance with the National Environmental Policy Act (NEPA).

U.S. District Judge Michael Simon has given the federal defendants -- BPA, U.S. Army Corps of Engineers and Bureau of Reclamation -- until the end of 2018 to replace the current BiOp and until 2021 to complete an EIS under NEPA rules.

Defendants' response to the proposed injunction

In a blizzard of paper filed Feb. 9 with the court, the defendants sharply opposed the plaintiffs' proposed injunction on spill and capital projects.

The week before, U.S. District Judge Michael Simon granted the defendants' request to file excess pages in their opposition to the plaintiffs' motion in the ongoing NWF v. NMFS, originally brought in 2001.

The federal agencies argued that the proposed injunctions are unnecessary because the agencies -- the National Marine Fisheries Service, BPA, the U.S. Army Corps of Engineers and Bureau of Reclamation -- are fully committed to the National Environmental Policy Act process ordered by the court last May.

In the interim, the agencies will use "the ESA consultation and regional coordination forums to fully evaluate FCRPS operations and develop science-based actions that ensure the protection of salmon and steelhead," according to a combined federal brief opposing the plaintiffs' motions.

Defendants and defendants-intervenors are the agencies mentioned above, the states of Washington and Idaho, Columbia-Snake River Irrigators Association and Northwest RiverPartners.

In their brief the agencies describe each of the nine capital-investment projects -- the plaintiffs referred to 11 projects -- the defendants say would be harmed if they were stopped. The capital projects plaintiffs seek to enjoin involve the four lower Snake River dams -- Ice Harbor, Little Goose, Lower Granite and Lower Monumental.

The National Wildlife Federation, Save Our Wild Salmon, the State of Oregon and many other conservation/fishing organizations are plaintiffs and plaintiff-intervenors who requested the injunctions. The Nez Perce Tribe is amicus curiae in the case.

According to the more than 800 pages of documents filed with the court, many of the upgrades and enhancement projects at issue at the four Snake River dams provide environmental benefits to fish. Three of the projects involve safety issues and two will be completed by September.

Enjoining projects at Ice Harbor Dam increases the likelihood of failures that would affect the Tri-Cities area, the brief stated.

The declarations of the Corps' David Ponganis, Northwestern Division regional programs director, and BPA's Kieran Connolly, vice president of generation asset management, take issue with the NWF plaintiffs' request to stop the Corps from starting any new capital spending at the four dams without the court's permission.

They cite the complex and arduous congressional appropriation and agency budgeting processes, among others, necessary to maintain the lower Snake River hydro system.

Ponganis' testimony details repairs and upgrades that he characterizes as critical to the operational integrity of the lower Snake hydro operations.

The plaintiffs also asked the court to increase spring spill to help downstream-migrating juvenile salmon and steelhead get to the ocean.

The Columbia-Snake River Irrigators Association contends the "enormous benefits of smolt transportation, particularly in low-water years with higher water temperature," have been ignored by the plaintiffs and by earlier decisions by the court that ordered additional spill, the CSRIA's brief said.

Were the proposed injunction to succeed, it would radically decrease the percentage of spring migrants transported around dams, the irrigators' group said.

"The injunction would, for example, increase spill over Lower Granite Dam, the most important collector project for smolt transportation, from the 20,000 [cfs] provided for in the 2016 Fish Operations Plan to 41,000 cfs," the CSRIA's brief said.

The analysis of the transportation to in-river ratio in the latest 2016 Comparative Survival Study (CSS) report is flawed, the CSRIA and its technical expert Darryll Olsen argue. (Fish that are not transported are considered in-river migrants.)

The combined federal brief also takes issue with the 2016 CSS, saying its modeling and analyses rely on associations between spillway passage and smolt-to-adult survival rates (SARs) "based on assumptions that powerhouse passage (turbines and bypass systems) are associated with high levels of latent mortality."

The Corps has installed or provided surface-passage routes, such as spillway weirs, corner collectors and sluiceways, at the federal Columbia and Snake river dams, moved juvenile-bypass system outfalls and taken other actions to improve salmonid survival, according to the federal brief.

Over the years, the agencies said, they have also tested, evaluated and adaptively managed spill operations at the dams.

In his declaration, Ritchie Graves, NOAA Fisheries' chief of the Columbia Hydropower Branch, described the reasonable and prudent alternatives of the 2014 BiOp as actions that are working. He said more fish have survived, juvenile fish-travel times have been reduced and abundance has improved.

The bottom line, the federal brief said, is that the "plaintiffs don't know whether their proposed injunction will hurt or help listed salmonids."

Plaintiffs' reply to opposing motions

Feb. 28 reply briefs by plaintiffs in the 2014 BiOp case rebutted arguments by federal agencies and defendant-intervenor arguments opposing the requested injunctions over spill and capital spending.

The plaintiffs' briefs said that contrary to the defendants' mixed-up attempt to claim that benefits of spill are uncertain, years of evidence collected and analyzed by the annual comparative survival study (CSS) leads to the conclusion that reducing the number of juvenile fish or smolts that migrate through powerhouses is likely to result in increased smolt-to-adult survival rates.

Reducing powerhouse encounters can be done by increasing the proportion of flow allocated to spill (relative to that allocated to the powerhouse), which the conservationists propose federal dam operators do more of in the spring.

"Neither federal defendants nor any other party has offered similarly comprehensive scientific analyses that indicate the CSS analyses are wrong. Instead, they raise … concerns … best characterized as claims that the perfect should be the enemy of the good," the NWF brief said.

Defendants said spill levels of 125-percent total dissolved gas (TDG) would harm juvenile fish. However, as plaintiff briefs point out, Oregon and the conservation groups did not request a spill injunction requiring spill up to 125-percent TDG or any level that would exceed existing state water-quality standards.

Oregon -- supported by the amicus curiae Nez Perce Tribe -- and the other plaintiffs asked the court to order the U.S. Army Corps of Engineers to provide the maximum spill level that meets, but does not exceed, existing TDG criteria of 115 percent in the forebay/120 percent in the tailrace. Those are levels that "NOAA and the Corps have long found to be safe for fish," the Oregon brief said.

The conservationists reiterated they are asking for a halt to capital expenditures at lower Snake River dams related to hydropower generation (not to safety or fish passage) so as not to prejudice dam-removal deliberations as part of the EIS.

The plaintiffs questioned the "headlong investment in four dams that the federal defendants themselves acknowledge they will consider removing."

There's no word from the court on when a decision might be rendered. However, as mentioned above, plaintiffs have asked the spill injunction to be effective April 3. -Laura Berg

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Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: Laura Berg
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