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NW Fishletter #371, July 3, 2017

[6] Appeal Filed Over Spill Decision in 2008-2014 BiOp Case

Defendants in the 2008-2014 BiOp case on June 2 filed an appeal of U.S. District Judge Michael Simon's recent orders on spill and capital expenditures at lower Snake River dams.

The notice of appeal comes after Simon overturned the current BiOp on the Federal Columbia River Power System May 4, 2016, and after plaintiffs' partial win of an injunction March 27, 2017, (amended April 3) regarding spill and improvements at four dams in the ongoing National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640].

Filing the appeal were defendants NOAA Fisheries (aka National Marine Fisheries Service), U.S. Army Corps of Engineers and Bureau of Reclamation, and intervenor-defendants Montana, Idaho, Northwest RiverPartners, and Inland Ports and Navigation Groups.

A decade ago, in 2007, the 9th U.S. Circuit Court of Appeals ruled against the defendants and affirmed a lower-court decision ordering more spill.

The lower-court decision by District Judge James Redden involved a challenge to the 2004 BiOp. Redden adopted the plaintiffs' recommendation to order 24-hour summer spill at the four lower Snake River dams and at McNary Dam on the Columbia River. The appeals court approved the lower-court ruling.

The plaintiffs in NWF v. NMFS are conservation and fishing groups, Oregon and the Nez Perce Tribe.

While summer spill was incorporated in the 2008-2014 BiOp, NOAA Fisheries did not include calls for even-higher spill levels that would allow total dissolved gas levels to increase from 120 percent to 125 percent in dam tailraces. The agency rejected the spill increase, saying it would create conditions harmful to juvenile salmon and steelhead trying to pass dams on the Columbia and Snake rivers.

When plaintiffs tried again this spring, Simon ordered federal action agencies to try more spill in 2018, but not as soon as 2017, as suggested by plaintiffs.

The other issue involved in the appeal is Simon's order requiring the Corps to notify plaintiffs when capital spending is planned at four lower Snake River dams.

The plaintiffs claimed, and Simon agreed, that some improvements at these dams--dams that the plaintiffs have asked be taken out to help recover fish runs--were likely to prejudice decisions involving a court-mandated environmental impact statement ordered by the court in its May 3, 2016 decision.

Meanwhile, Columbia-Snake River Irrigators Association, one of the amicus curiae parties in the litigation, wants a federal investigation of a 2015 salmon managers' decision to let Endangered Species Act-listed salmon and steelhead migrate on their own through the lower Snake River. A news release emailed to NW Fishletter said the irrigators association believes the decision not to transport fish through dams and reservoirs during the low flow and warm water of 2015 is contributing to this year's poor adult fish returns.

The group sent a letter to the inspectors general of the U.S.Army Corps of Engineers and NOAA Fisheries' parent agency, the Department of Commerce. Neither the Corps nor NOAA Fisheries responded to requests for comment. -Laura Berg

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