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NW Fishletter #375, November 6, 2017

[9] Irrigators Push to Reopen Spill Issue in Columbia River BiOp Case

Defendants and plaintiffs alike oppose the Columbia-Snake River Irrigators Association motion to rehear U.S. District Judge Michael Simon's March 2017 decision requiring more spill at the dams to help the downstream migration of juvenile fish.

Briefs about the motion to reopen the issue were filed in late September and in October.

The irrigator association favors increased barging of juvenile fish instead of spill. In particular, the CSRIA wants no additional spill at dams where the young salmon and steelhead are collected for transportation.

The association is a defendant-intervenor in NWF v. NMFS [01-640] involving Simon's ruling on the latest BiOp regarding the Federal Columbia River Power System.

To further its advocacy for fish transporting, the irrigation group is seeking an evidentiary hearing that would get the court to overturn its injunction for more and earlier spill starting in spring 2018.

The crux of the CSRIA argument is that "a decision to increase spill is also a decision to decrease [juvenile] transportation, and that is unquestionably bad for fish," an earlier irrigators' motion before the court stated.

Other litigants in the case pointed out in Oct. 13 briefs that these were same arguments the court rejected in March, when it ordered the injunction for additional spill.

"CSRIA's motion is therefore aimed at re-litigating matters the court has already decided and matters that are subject to a pending action in the Ninth Circuit," U.S. Department of Justice attorneys wrote in their Oct. 13 brief.

"The appropriate forum for our objections is now the Ninth Circuit," the U.S. attorneys said. The appeal is pending.

Fish barges at Lower Granite Dam. Credit: Tony Grover, NWPCC

Federal defendants--the National Marine Fisheries Service (also known as NOAA Fisheries), BPA, and the U.S. Army Corps of Engineers and Bureau of Reclamation--opposed more spill at federal dams.

Even though the defendants appealed the judge's ruling against them, they have been working with the plaintiffs and tribal, state and other federal fish managers to implement the court's order for more spill next year.

In October, the parties were close to an agreement on a 2018 spill implementation plan that was specific to each of the eight federal hydropower projects on the Columbia and Snake rivers. (See NWF v. NMFS Parties Close to Consensus on Spill Plan.)

An Oct. 13 federal brief said the CSRIA motion "seeks to circumvent the regional conferral process." Also, earlier this year the irrigation group objected to a proposal for developing a spill plan, including a provision for status conferences with the parties and the judge.

"The agencies have spent months investigating a new fish passage spill operation," the defendants' brief said. "The CSRIA motion would divert resources away from the federal agencies' efforts to address the court's order.

"This work is, of course, in addition to their daily tasks as well as the time now being spent developing a 2018 BiOp and working through the multi-year NEPA process," the U.S. attorneys wrote.

A CSRIA reply brief filed Oct. 20 said that important new information was now available that had not been completed when Simon decided the spill case in March.

The group's attorney said transport-to-in-river ratios in the Draft 2017 Comparative Survival Study--released Aug. 31, 2017--show that fish transported in 2015 returned at a much higher rate than in-river migrants.

"The preliminary information contained in the draft report is similar to information CSRIA already provided," the federal brief said.

The brief cited a NOAA Fisheries' March 2, 2017 memo that addressed fish conditions in 2015, when low-flows, lower spill levels and high water temperatures led to several hundred thousand Snake River sockeye deaths.

The federal defendants and the State of Oregon also indicated in earlier briefs that issues regarding juvenile transportation at particular dams may be considered while a spill plan for 2018 is developed, and in implementing the plan.

The briefs submitted by attorneys for plaintiffs National Wildlife Federation and Oregon made similar arguments to those made by federal attorneys in opposition to the CSRIA motion on spill and barging.

In recent years, roughly 30 percent of Snake River juveniles have been barged each season. Three of four lower Snake River dams have fish transport facilities.

Simon is expected to make a decision on the CSRIA motion soon. -Laura Berg

This story was corrected November 9 to state that juvenile fish were no longer being transported from McNary Dam.

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