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NW Fishletter #369, May 1, 2017
 Council Briefed on Likely Broader Implications of Latest BiOp Spill Ruling
A recent ruling in the ongoing BiOp litigation will have implications beyond increasing spill in 2018, the Northwest Power and Conservation Council was told at an April 12 briefing.
These include effects on non-listed fish from proposed spill operations and potential financial and operational impacts.
While U.S. District Judge Michael Simon's March 27 ruling ordered more spring spill to help recover ESA-listed fish, it could affect other fish covered by the Columbia Basin Fish and Wildlife Program but not the BiOp or the ruling, according to John Shurts, the Council's general counsel.
Upper Columbia River summer and fall Chinook as well as upper Columbia sockeye, sturgeon, lamprey, resident and other fish species are not protected under the ESA, but are covered by the Fish and Wildlife Program.
The program is not only broader in terms of species affected by the hydro system, Shurts told NW Fishletter, but also the ultimate objective of the program goes beyond delisting endangered species.
The Council's role in the spill issue, he said, includes examining potential impacts from proposed spill increases on both listed and non-listed fish species in the Columbia Basin.
Spill is used in fisheries management to aid juvenile salmonids migrating downstream past Columbia and Snake river dams on their way to the ocean.
The plaintiffs in the FCRPS litigation, National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640], sought more spill in the spring than provided in the 2014 BiOp, and they wanted it to start this spring.
The court ordered increased spill but not until 2018, to provide "sufficient time to consider an appropriate protocol and methodology for spill at each dam, incorporating the most beneficial spill patterns," the March 27 opinion said.
From a fisheries standpoint, the main danger from spill is that it can potentially introduce too much total dissolved gas (TDG) into the river as water plunges down a dam's spillway. Fisheries experts say that when spill levels reach 125-130 percent TDG, fish can be injured or even die.
When water is spilled close to a hatchery intake, as was the case this spring at Dworshak Dam, dissolved gas levels need to be lower because the water in hatchery rearing tanks is shallow and doesn't allow fish to dive deeper to avoid gases, as fish do in the river.
Even though good flow and passage conditions for listed salmonids are usually good for non-listed salmonids, that can't be assumed, Shurts said.
As federal agencies design 2018 operations for additional spill, they shouldn't forget about the non-listed salmonid and other fish species, he said.
He and Council Fish and Wildlife Division Director Tony Grover made the point that federal agencies have fish obligations under the program and the Northwest Power Act, as well as under the ESA.
"We may want to communicate that to the federal agencies," the general counsel said.
Grover added that under the regional act, the Council is expected to examine proposals that would require BPA to spend fish and wildlife funds, which may occur as federal agencies develop a spill plan and test for next year.
"We have an obligation to review the proposals to see if they would be good functional expenditures," he said.
Because the F&W program and the independent science panels associated with the program have history and experience with the spill issue, the Council may be called upon to engage the science boards in evaluating the proposed 2018 spill operations.
The Council was also advised there could be financial implications from increased spill and possible impacts to the fish and wildlife budget and program. If that's the case, Shurts said, the Council might want to think about protecting program priorities. -Laura Berg
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