Plaintiffs in BiOp Case Tell Court the EIS Approach 'Obscures' Tradeoffs
The planned EIS on the Federal Columbia River Power System is "broader in scope and complexity and more expensive and time consuming than the court indicated is necessary," plaintiff parties in National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640] argued in a Nov. 28 status conference before U.S. District Judge Michael Simon.
The plaintiff parties--National Wildlife Federation representing environmental and fishing groups, the Nez Perce Tribe and State of Oregon--were responding to the federal defendants' progress report on plans for the National Environmental Policy Act EIS required by a May 2016 order of the district court. The federal status report was filed in district court Oct. 30.
Most of the alternatives the planned EIS will examine won't be germane to operating the federal power system in a manner that addresses the survival, recovery and habitat needs of Endangered Species Act-listed fish that are the subject of the litigation, the plaintiffs' briefs argued.
The federal status report said the range of alternatives to be considered would be more than one alternative that the government agencies "believe could be adopted in compliance with the ESA."
"This is not, of course, to say that all of the action alternatives evaluated will meet this goal," the federal report said.
The federal defendant parties are National Marine Fisheries Service (NOAA Fisheries), U.S. Army Corps of Engineers and U.S. Bureau of Reclamation.
Defendant-intervenors in the case are Northwest RiverPartners, Inland Ports and Navigation Group, State of Idaho, State of Montana, State of Washington, Kootenai Tribe of Idaho, Confederated Salish and Kootenai Tribes, and the Northwest Power and Conservation Council.
Instead of alternatives that comply with the ESA, the plaintiffs' briefs emphasized, the federal plan is for the EIS to cover the multiple purposes of 14 FCRPS dams--flood control, navigation, hydropower production, irrigation, fish and wildlife conservation, recreation, municipal and industrial water supply, and water quality.
The federal action agencies have estimated the cost of the EIS at $80 million.
The plaintiff brief says the federal approach "will lead to an EIS that obscures, rather than clarifies, the tradeoffs among reasonable alternative courses of action for dam operations and mitigation measures that comply with the ESA."
The Nez Perce's brief said that the scope of the planned EIS could result in failure after five years of effort but "consume extraordinary agency, party and regional resources over the next four years."
The schedule proposed by the federal defendants and adopted by the court is for the EIS to be completed in 2021.
U.S. Department of Justice attorneys argued that the NEPA review must be broad, because in addition to scoping a set of alternatives for ESA and listed species, a number of statutory requirements are affected.
The other issue brought by the plaintiffs involves the plan for a new BiOp in 2018.
Plaintiff attorneys told the judge that the planned 2018 BiOp--ordered by Simon--would not comply with NEPA, at least for the three-year period before the EIS is completed.
The plaintiffs stress that adoption and implementation of an ESA BiOp requires NEPA compliance. To fix the flaws alleged by plaintiff parties, the National Wildlife Federation proposed that the federal agencies alter their plans and "match the scope of the EIS that is necessary to comply with NEPA," which requires federal agencies to prepare an EIS on "major federal actions significantly affecting the quality of the human environment."
NWF also suggested the court modify its injunction to require the continuation of the current 2014 BiOp until 2021, when the EIS would be completed.
In its brief, Oregon also wrote in regard to keeping the current BiOp, "Any such discussion must consider extending the spill injunction beyond the 2018 spill season."
In March 2017, the court ordered additional spill at eight federal dams to aid downstream passage of juvenile salmon and steelhead.
At the Nov. 28 status conference, Simon said he was inclined to agree with the plaintiffs that the planned EIS was overly broad and more than the court intended.
But as Terry Flores, executive director of Northwest RiverPartners, told NW Fishletter in an email, "the court does not have the authority to tell the feds how to do the NEPA process," which Simon has acknowledged.
Steve Mashuda, an Earthjustice attorney for NWF, told Fishletter the judge seemed interested in the idea of maintaining the 2014 BiOp, supplemented with the new court-ordered spill, until the EIS is finished.
The justice department attorneys, however, said they would proceed with a 2018 BiOp.
Federal attorneys argued it would be inappropriate for the court to try to amend its May 2016 order to craft a new BiOp and questioned whether the court had the authority to do that, Flores said.
She said that "other parties also weighed in, notably, attorney Jay Weiner for the State of Montana, who said on behalf of Montana and upriver tribes--the Kootenai Tribe of Idaho and Confederated Salish and Kootenai Tribes--that because upper river dams and species also are affected, a broad NEPA process was needed."
According to Flores, RiverPartners' attorney Beth Ginsberg recommended an evidentiary hearing "if the judge wants a spill order beyond 2018," while Inland Ports' attorney Jay Waldron said "the plaintiffs were simply trying to keep 24/7 maximum spill in place through the duration of the NEPA process and the judge should be aware that is their goal."
Simon asked the parties to return to court in January, in part to address some of these issues.
Mashuda and Flores reported that Simon said the parties should submit a motion to amend the remand order, allowing the 2014 BiOp and the spill injunction to continue through the NEPA process, and if there's not agreement, motions by one or more of the parties regarding the dates and/or extent of spill.
Or the other alternative, the judge said, was to provide a status report that no change was needed, which according to Flores, would mean they had figured out how to integrate the BiOp to meet NEPA and ESA requirements.
"RiverPartners is very concerned with the notion of dispensing with a 2018 BiOp and having federal hydro system operations run from the bench via injunctive motions during the NEPA process," Flores said.
Mashuda said he hopes the plaintiffs' efforts result in a "reset." -Laura Berg
 Briefs Filed in Appeal of Spill Order in BiOp Case
The federal defendant and its intervenor parties in the Federal Columbia River Power System BiOp litigation filed briefs in the 9th U.S. Circuit Court of Appeals in late October, asking for a reversal of a lower court's directive granting more and earlier spill beginning in 2018.
The federal appellants' brief said District Judge Michael Simon's ruling did not meet the standard for injunctive relief under the Endangered Species Act Section 7 because the U.S. District Court for the District of Oregon found that "any magnitude" of harm to a listed species is enough to warrant changes to FCRPS operations. The standard is irreparable harm at the species level, the brief argued.
The injunction came in National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640], less than a year after the judge overturned the current 2008-2014 BiOp in May 2016 and ordered a new BiOp and environmental impact statement on the power system.
The lower court's "any magnitude" of harm criterion "gives the district court unfettered discretion to order any changes to the FCRPS it deems fit," said intervenor-appellants Northwest RiverPartners in its filing.
The RiverPartners' brief implies the court's injunction needed "to target the specific FCRPS operations that were allegedly causing irreparable injury."
Federal appellants claim the district court erred by not considering the potential effects on power system reliability and costs to federal agencies and the public from significant operational changes at the eight mainstem dams during the spring season when the spill order is implemented.
The court did not take into account the injunction's cost or impact on the agencies from redirecting resources and experts from the job of preparing a new BiOp and EIS, the federal brief said, "or the cost or impact on Northwest communities, in the form of higher energy rates and/or potential reductions in Bonneville funding for programs that benefit the region, reduced reliability of the power system (e.g., risk of blackouts), or impediments to commercial navigation."
The arguments made by appellants echo the concerns they submitted in opposition to the spill injunction when it was proposed by the plaintiff conservation and fishing groups last January.
Meanwhile, according to a Nov. 20 proposal by all parties involved in the NWF et al. v. NMFS et al. appeal [17-35462] of the spill decision, answering briefs by appellees the National Wildlife Federation, State of Oregon and Nez Perce Tribe will be due Jan. 9, 2018, if the 9th Circuit concurs. -Laura Berg
 Idaho Power Files Incomplete Water Quality Application With FERC
Idaho Power Company filed a large part of its application for water quality certification for the Hells Canyon Complex [FERC P-1971] hydroelectric project with the Federal Energy Regulatory Commission Nov. 28.
The application is complete save for four sections related to temperature, dissolved gas and other data related to fish passage conditions.
Idaho Power Company had previously filed a concurrent withdrawal and resubmission of its application on April 14.
Both the Idaho and Oregon departments of water quality requested additional analysis of 2015 and 2016 temperature and dissolved oxygen data by the utility for Clean Water Act Section 401 certification. This plus "ongoing discussions between Governors [Butch] Otter and [Kate] Brown regarding fish passage" prompted the withdrawal and resubmission.
Letters from both departments state they expect the missing sections to be submitted within 90 days of the Nov. 22 request from the utility, which would be Feb. 20, 2018. In the filing, Brett Dumas, director of environmental affairs for Idaho Power Company, said the utility intends to meet that deadline.
NOAA Fisheries and the U.S. Fish and Wildlife service were also notified, according to correspondence from Idaho Power Company filed with FERC.
The Hells Canyon hydroelectric facility is located in the Snake River Basin of Oregon and Idaho. Its three dams supply about 70 percent of Idaho Power's annual hydroelectric generation and 30 percent of its total generation. -Linda Dailey Paulson
 Mystery of Poor Survival of Sockeye Smolts May Be Solved
The different water chemistry at the Springfield hatchery and in Redfish Lake Creek likely explains the smolt mortality seen in 2015, 2016 and 2017, and points to possible solutions, according to a presentation given to the Northwest Power and Conservation Council Nov. 14.
When Idaho Department of Fish and Game completed the Springfield sockeye hatchery in 2013, the agency expected 5,000 adult sockeye would eventually return to Lower Granite Dam from the ramped-up production and release of juveniles.
Instead biologists observed higher than usual mortality after the first batch of juvenile fish were transported from the hatchery to the release site at Redfish Lake Creek.
Funded by BPA as part of the Snake River Sockeye Salmon Recovery Program, the Springfield Fish Hatchery's objective is to produce a million sockeye smolts (juvenile salmonids). This number of juveniles could result in the eventual return of several thousand more adult sockeye than the 3,000 highest adult returns from the program, which started in the mid-1990s.
The hatchery is operating as anticipated and producing high-quality smolts, Paul Kline, IDFG's Assistant Chief of Fisheries, told the Council.
But within two days of the first release of juvenile sockeye in 2015 to Redfish Lake Creek--a four-to-five hour drive from the Springfield hatchery--biologists sampling juveniles at Lower Granite Dam found thousands of dead smolts and others in poor condition.
In 2015, "poor condition" included signs of gas bubble disease and blunt force trauma in the juvenile sockeye. Was it a faulty aerator? A problem while loading smolts into thetransport truck? IDFG addressed the gas super-saturation issue and acquired a larger fish-loading pump.
In addition, IDFG personnel analyzed the program's protocols for rearing, loading, hauling and release.
Still, survival did not improve in the smolt releases of 2016 and 2017.
In 2016 high descaling was observed at release, and smolt readiness was suspected, Kline told the Council. Release timing was moved up by two weeks.
With no improvement in survival again this year, other factors were likely responsible, he said.
Dr. Jesse Trushenski, IDFG Fish Health Program Supervisor, was called in.
Working with NOAA Fisheries, staff from the two agencies evaluated the last six months of smolt rearing and releases "in case there was something we had overlooked," Trushenski said at the Council meeting.
This additional work involved physiological measures of two interrelated processes in salmonids--smoltification, which is the physiological transformation needed to adapt to saltwater; and the stress response.
Examining blood and gill tissues, the scientists found high levels of cortisol and glucose before and after transport.
High levels of the stress hormone cortisol and of the energy-supporting compound glucose are normal for juvenile fish being pumped into a crowded tank and transported, and normal for juvenile salmonids going through smoltification.
After the juveniles have been released, "we might expect the smolts to start recovering, but instead we saw a sharp uptick in cortisol and glucose levels," Trushenski said. Even after 24 hours, the degree of recovery was weak.
She said this suggested the fish were encountering a serious stressor after release.
The scientists started looking for possible causes and discovered major differences in water chemistry between Springfield Hatchery and Redfish Lake Creek.
"Turns out, the well water at Springfield is very hard--high in calcium concentrates--and has high alkalinity, while Redfish Lake Creek is practically distilled water," the fish health expert said. The creek water is unusually soft and has low alkalinity and generally a lower pH than the Springfield water.
Dramatic differences in water chemistry like this can cause disease and mortality in salmonids, especially combined with a stressor such as smoltification.
Trushenski said the discrepancies in water chemistry appear to be the smoking gun in the significantly reduced survival of Springfield-reared smolts.
What's the solution? So far, the short-term holding of sockeye smolts at another facility with a different water source prior to release into Redfish Lake Creek holds the most promise, according to preliminary results of a multi-phased experiment started this fall and conducted by Trushenski.
The other facility is the Sawtooth Hatchery, also part of the Snake River Sockeye Salmon Recovery Program, but with water from the Salmon River, which has water chemistry values intermediate between the Springfield Hatchery and Redfish Lake Creek.
Experimentation will continue in spring 2018. The presentation at the Nov. 14 Council meeting tells more about the puzzle and the research underway to address sockeye smolt survival.
BPA has faith that the problem will be resolved. "We are confident that our partners will find a solution to the Springfield Hatchery issue," Bonneville spokesman David Wilson told NW Fishletter. "We feel it is still very much a viable hatchery for salmon and a good use of ratepayer dollars," he said.
"It's good to remember that it's hatcheries similar to this that likely saved Snake River sockeye from extinction." -Laura Berg
 Chum Salmon Operations Underway at Bonneville Dam
Flows to protect chum salmon spawning at Bonneville Dam started Nov. 7, a week later than planned because of the absence of chum in the area and low inflows at the dam.
Chum are now present below Bonneville Dam in the Ives/Pierce island area where they will spawn; and as of Dec. 1, 21 chum have also been counted passing Bonneville Dam.
While surveying the Ives/Pierce island area for spawning chum in early November, Washington Department of Fish and Wildlife biologists spotted Steller sea lions eating the fish near Woodward Creek, not a location where sea lions have been encountered before.
Columbia River chum are listed as threatened under the Endangered Species Act. Their returns have ranged between 1,000 and 10,000 in recent decades, with runs in the Lower Columbia Gorge population exceeding the goal of 2,000 adult chum annually. The 2016 return to the lower Columbia Gorge, near Bonneville Dam, was 3,400 chum.
The annual chum operation, dictated in a plan required by the FCRPS 2008-2014 BiOp, aims for a tailwater elevation at the dam of at least 11.5 feet but no more than 13 feet. This is the elevation range that is optimal to encourage chum spawning and protect the chum redds once they're made.
Above this elevation range, flow velocities can become too high, making it difficult for chum to spawn.
However, if water levels do rise--usually because of abundant rainfall--the chum plan, coordinated by the interagency Technical Management Team, allows dam operators to increase project outflow during nighttime hours, first up to a tailwater elevation of 16.5 feet and then, if necessary, up to 18.5 feet, because biologists believe chum are daytime spawners.
The 90 day forecast in the lower Columbia Basin is for slightly above-average precipitation. Although it's early in the season, the April-August runoff forecast is about 107 percent of normal at The Dalles Dam and 105 percent of normal at Grand Coulee.
Chum flow operations are maintained into January. -L. B.
 NW Likely Experiencing Onset of a La Niña That Could Last to Spring
Current ocean and atmospheric conditions reflect the start of a La Niña, the National Weather Service's Climate Prediction Center (CPC) said in a Nov. 9 post.
The consensus of forecasters is for a weak La Niña in the Northern Hemisphere to continue through February-April 2018.
The probability of a La Niña event this winter increased to 65 to 75 percent, up from 55 to 65 percent last month.
Tropical sea surface temperatures were volatile during September, but seem to have stayed at about 0.5 degrees Celsius colder than average, giving forecasters more confidence these conditions will persist for some months to come.
Climate blogger Emily Becker wrote that October's atmospheric response, that is clouds and rain, were accompanied by stronger-than-average upper-level winds over the Pacific Ocean, which is also consistent with a La Niña.
Three-month predictions anticipate cooler-than-average temperatures in the northwest half of Washington and Oregon, but equal chances of above- and below-average temperatures in the Columbia Basin.
Precipitation in the coming three months is predicted to be above average in the northern portions of the Northwest and Columbia Basin.
Most of California can anticipate temperatures warmer than average.
The next El Niño/La Niña system update is set for Dec. 14.
The consensus forecast is based on two prediction models, the International Research Institute for Climate and Society/CPC and the North American Multi-Model Ensemble. -Laura Berg
 Lawsuit Pending Over Willamette River Chinook and Steelhead
Three environmental groups have given notice of their intent to sue the U.S. Army Corps of Engineers over alleged harm to upper Willamette River Chinook and steelhead.
Advocates for the West said in a Nov. 2 statement the Corps had 60 days to take action to work with National Marine Fisheries Service "to develop a new plan to reform dam management in the basin before it is too late to save these iconic species."
The group filed the letter of intent on behalf of the Native Fish Society, Northwest Environmental Defense Center and WildEarth Guardians, all of Oregon.
This is, potentially, the second recent lawsuit over salmonids in the Willamette River, which is the third-largest tributary of the Columbia River. In March, two environmental groups sued to stop Corps' funding of hatchery summer steelhead releases in the upper Willamette Basin.
The Corps operates 13 dams on the upper Willamette River and its tributaries, which block a substantial amount of the basin's fish-spawning habitat and alter the rivers' natural hydrology.
In a 2008 BiOp, NMFS determined that the dams jeopardize the survival and recovery of threatened Chinook and steelhead unless changes--outlined in a list of Reasonable and Prudent Alternative (RPA) measures--are made to dam operations and fish management.
The 60-day letter of intent claims the Corps has delayed or missed RPA deadlines to improve conditions for these Endangered Species Act-protected fish and singles out requirements to provide downstream passage for juvenile fish migrating through the agency's dams and reservoirs.
The fish advocates acknowledged the Corps has made some progress, but said the actions have not been enough.
"Recent information shows that the status of Upper Willamette River Chinook and steelhead has not improved, and in fact many populations have declined, during the first nine years of the BiOp," the letter states.
The 60-day notice says NEDC, WildEarth Guardian and Native Fish Society "are interested in discussing ways to resolve these issues without litigation."
However, the groups have not asked the agency for a meeting, Corps spokesman Tom Conning told NW Fishletter in an early November email. -Laura Berg
 Cost Savings From Fish & Wildlife Projects Totaled About $2M
The Northwest Power and Conservation Council on Nov. 15 approved the transfer of up $324,000 to repair or replace equipment at fish hatcheries in Idaho, Montana, Oregon and Washington; and $150,000 for an environmental assessment of needed maintenance on five large irrigation fish-diversion screens.
The Cost Savings Workgroup identified nearly $2 million in savings that were either transferred to other fish and wildlife projects or returned to BPA.
While cost savings of $2 million were identified in 2017, only about $650,000 of the nearly $2 million is from FY 2017. A larger portion of the $2 million is expected from FY 2018.
The work group's latest reprogramming of fish and wildlife funds is part of a Council effort to maintain past investments in the Columbia River Basin Fish and Wildlife Program. Started in 2015, the Council/BPA work group is charged with controlling the cost and improving the efficiency of the program.
Additional potential cost savings of some $3 million have been identified, but not confirmed, for fiscal years 2019 and 2020.
 Court Denies Motion for Hearing on Spill and Barging
U.S. District Judge Michael Simon rejected Columbia-Snake River Irrigators Association's (CSRIA) motion for an evidentiary hearing and for discovery to address the issue of how increased spill will affect the juvenile transportation program.
The court's Nov. 21 decision found CSRIA's arguments the same as ones CSRIA previously made and that the court previously discarded in the ongoing National Wildlife Federation v. National Marine Fisheries Service [01-640].
CSRIA had asserted that additional spill would reduce juvenile fish transportation and cause an associated decrease in juvenile survival and adult returns.
Simon said when the court ordered a March 2017 injunction requiring increased spill over eight dams in the Federal Columbia River Power System, it gave the parties an additional year to develop an implementation plan that considered each dam's unique configuration and operation.
"The delay in [spill] implementation was not intended to allow further litigation over the merits of the increased spill, which the court had already resolved, but over the specific level of increased spill at each dam," the judge wrote.
The court said CSRIA's motion "is nothing more than a disguised motion for reconsideration."
Simon also noted that because the court's spill order is on appeal before the 9th U.S. Circuit Court of Appeals, the district court did not have jurisdiction to reconsider its opinion.
"Such arguments are now to be brought before the Ninth Circuit," he said. -L. B.
 NMFS Publishes Notice of Overfishing Determinations
National Marine Fisheries Service announced Nov. 21 that it had published a Federal Register Notice of overfished and overfishing determinations. Coho from the Stillaguamish River is the only salmon stock NMFS found to be overfished.
Three stocks were determined to be approaching an overfished condition. They are two stocks of coho, Queets and Skagit, and Klamath fall Chinook. No Columbia River stocks were determined to be overfished or to be approaching an overfished condition. -L. B.
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