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NW Fishletter #375, November 6, 2017
 NWF v. NMFS Parties Near Consensus on Spill Plan for 2018
Attorneys for the parties in the 2008-2014 BiOp case say a plan for 2018 spill at Columbia and Snake river dams is nearly complete.
The comments were made during an Oct. 3 status conference before U.S. District Court Judge Michael Simon.
Simon's March 2017 order in National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640] requires federal agencies to start spilling water earlier in the spring and at the maximum allowable levels. In May 2016, the judge also ordered an EIS on FCRPS.
Spill at dams is used to enhance the downstream migration of juvenile salmonids, but its volume is restricted by the amount of total dissolved gas measured in the river.
Speaking in defense of the federal government, U.S. Department of Justice attorney Michael Eitel told the judge that after months of work by technical teams and policy consideration by the Regional Implementation Oversight Group (RIOG), an agreement has largely been reached on what would be a sound and reasonable spill plan for next year.
The technical work included testing spill levels and patterns at the U.S. Army Engineer Research and Development Center in Vicksburg, Miss.
Eitel said RIOG would meet on Oct. 18 to resolve the remaining issues and wrap up the process in early November.
Attorneys for the plaintiff environmental groups and State of Oregon concurred that the parties were close to consensus.
The remaining issues are how to adjust spill at Little Goose Dam when eddies form that impede adult salmon and steelhead trying migrate upstream, and how to define the flexibility requested by BPA.
Oregon attorney Nina Englander said whether flexibility involves markets or safety, "there's still not a lot clarity on what flexibility is about."
Englander and other plaintiff attorneys emphasized that flexibility "mustn't be achieved on the backs of fish."
Attorneys also noted that the spill simulation for John Day Dam would not be completed until this winter.
The exception to consensus came from the Columbia-Snake River Irrigators Association.
The group filed a request in September for the federal court to hold an evidentiary hearing on the judge's March 27 spill order. Association attorney James Buchal told Simon that spilling is not good for fish, and that transporting the juveniles is a better solution.
Although Buchal didn't answer directly when the judge asked if the irrigators were requesting to rehear the spill issue, Simon said he had already considered the issues brought by the irrigators when he ordered the 2018 spill plan.
The court-ordered spill plan for next year may be incorporated in the next Biological Opinion on the Federal Columbia River Power System, which NOAA Fisheries is expected to finish by Dec. 31, 2018.
Meanwhile, the defendants reported Oct. 30 on the status of an Environmental Impact Statement on the federal power system, which is also an order of the court. The status report by federal attorneys said the environmental review process in NWF v. NMFS is on track to complete by 2021, the original deadline set by the judge. The report also said the BiOp on the power system due next year, will be one of the alternatives in the draft EIS. -Laura Berg
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