Court's Spill Order To Be Scrutinized At 9th Circuit
The 9th U.S. Circuit Court of Appeals will hear arguments on March 20 on whether to uphold an April 2017 ruling by U.S. District Judge Michael Simon ordering a substantial increase in 2018 spring spill to help push juvenile fish past eight Snake and Columbia river dams.
The dispute--National Wildlife Federation et al. v. National Marine Fisheries Service et al. [17-35462]--could be decided before the spill order goes into effect from April 3 through June 20 on the Snake River dams, and from April 10 through June 15 on the lower Columbia River dams.
While the irreparable harm issue is at the heart of legal arguments, both sides cite prior court-ordered spills, prior agency actions and the current condition of listed salmon and steelhead in their arguments.
In briefs filed by both sides in January, appellants--the National Marine Fisheries Service, U.S. Army Corp of Engineers and BuRec--repeatedly refer to the spill order as an "experiment" with unknown and unproven benefits, which they claim is not a high enough standard to impose an injunction.
Appellees--a group of 11 environmental and recreation advocates led by National Wildlife Federation--point to the district court's finding that some of the listed species remain in a "precarious," "imperiled" and "perilous" state, and that dams are the largest human-caused reason for juvenile deaths.
The briefs focus largely on environmental issues and legal precedent, and not other impacts, although appellant-intervenor Northwest RiverPartners states that the spill "experiment" would "significantly increase carbon emissions (by 840,000 tons) and cost an estimated $40 million on average."
RiverPartners joined government agencies, and intervenors Idaho, Kootenai Tribe of Idaho and Confederated Salish and Kootenai Tribes, and the Inland Ports and Navigation Group to appeal Simon's spill order, as defendants in the lower court case. The National Wildlife Federation, along with several conservation and recreation groups, Oregon and the Nez Perce Tribe, seek to defend it, as appellees and plaintiffs.
Here's what appellants argued in reply briefs filed Jan. 31 about why the spill order should be overturned:
Government agencies juxtapose the situation in the early 1990s, when "species' status was degraded and continued to steadily decline," with what's happened since: an "unprecedented package" of fish recovery efforts, "backed by the Fish Accords--historic agreements among the federal agencies, five Tribes, and three States that effected a suite of actions at a cost of almost $1 billion for the 10-year duration of the BiOp and a $40 million-plus agreement for estuary habitat improvements between federal agencies and the state of Washington."
The agencies claim that relevant facts, and the condition of the species, have changed since U.S. District Judge James Redden's 2005 order to spill more water over one Columbia and four Snake river dams, a decision later upheld by the 9th Circuit.
Specifically, a 2011 status review--which plaintiffs used to argue that listing status remains unchanged--also found that the risk trend for all the species at issue is stable or improving.
RiverPartners added that "the most recent five-year status review shows that most listed stocks are increasing in abundance, productivity, or both," and that all but one of the listed species "is at least triple the numbers estimated in the 1980s or 1990s."
It says that Simon's finding that spill could offer immediate benefit, and is "worth trying," demonstrates that the spill order is experimental. "Injunctions are generally issued to stop experiments, not require them," they write.
They further argue that the plaintiffs must also prove that without the spill, their recreational or aesthetic interests face imminent and irreparable harm.
The Kootenai Tribe adds that a court injunction would automatically be justified for a species that is endangered. "In essence, appellees are advocating that whenever a reviewing court determines that a species is in a precarious, imperiled or perilous state, whatever those terms mean, the irreparable harm factor for an injunction under the ESA is per se satisfied," its brief states.
The State of Idaho calls the order "judicial micromanagement," citing "significant technical debate" over the benefits of spill and spill levels. The state's brief says that, because the district court found the 2014 BiOp complied with critical habitat measures, the ESA entitles the federal agencies to choose an appropriate alternative, and they're not "required to pick the best alternative, or the one that would most effectively protect the species or habitat."
Federal agencies add that the district court's finding of irreparable harm is based on a premise that--compared with the plaintiffs' preferred action to spill more water--the agencies' current actions are harming salmon. Instead, they say, the court must find that the government's actions, in and of themselves, are causing irreparable harm before imposing an injunction. "Injunctions are extraordinary remedies to be granted only where the action being enjoined is itself causing immediate, irreparable harm," the agencies' brief states. "Injunctions are not properly granted merely to conduct research, or on the basis that some other, potentially beneficial action might exist."
Appellees, who filed briefs Jan. 9 and Jan. 12, have a different take on the spill order that was approved Jan. 8 in district court.
In its brief, NWF says, "Over the course of more than 20 years, increasing the amount of water spilled at each dam has proven to be the most effective measure available that can be employed immediately to reduce the harm to, and increase the survival of, ESA-listed salmon and steelhead."
The conservation groups note that this is not the first, but the fifth time the district court has mandated increased spill to avoid "irreparable harm" to juvenile salmon and steelhead after rejecting BiOps. "Like previous orders, it correctly concludes that dam operations under the failed 2014 BiOp, will cause irreparable harm to ESA-listed salmon and steelhead, and correctly concludes that an injunction ... will reduce the harm to these species that would otherwise occur."
NWF also says the agencies and other appellants are making the same arguments that failed before Redden in 2005--that additional spill is risky and untested, and could harm salmon from gas bubble trauma. "These arguments are no more persuasive on the current record than they were in 2005," they write.
The State of Oregon also points to a history of BiOps that failed to comply with the ESA, and subsequent court orders to spill water over dams. The state says the issue boils down to whether listed species "are irreparably harmed by ongoing status quo operation of the FCRPS and whether the district court abused its discretion by ordering additional spill to aid the species."
Irreparable harm was shown by the court's determination that the 2014 BiOp was "greatly flawed and does not provide sufficient protection for the species," its brief stated. Because of that, "The listed fish remain at precariously low abundance levels and continue to suffer ongoing harm from FCRPS operations."
Oregon also argues that the district court acted "well within its discretion," calling the increased flow "a necessary remedy to offset some of the harm caused by [the Federal Columbia River Power System]."
The Nez Perce Tribe, in its amicus brief, focuses mostly on the dams' "enormous real-world impact on salmon and steelhead" when describing why it supports affirming Simon's decision.
The Nez Perce brief questions a NOAA Fisheries' characterization of the Snake River spring/summer Chinook returns in 2010-2012 as "very high," quoting a declaration before district court by the tribe's fisheries manager David Johnson: "Although they [Snake River spring/summer Chinook] have indeed been listed for a long time relative to our working careers, these salmon returns, to a basin with the size and quantity of good, quality habitat of the Snake River basin, should not be regarded as anything but a biologically and ecologically extraordinary circumstance."
It concluded, "Their degraded condition should not become a new normal in which relatively larger increases in returns are heralded as good." -K.C. Mehaffey
 Irrigators Turn To 'God Squad,' Others Push For Litigation Timeout
Some say it's time to take decisions about operating federal hydropower out of the courts, either permanently or temporarily. Groups opposed a U.S. District Court order to spill more water over eight federal dams are using different tactics in attempts to stop or delay continued litigation.
Darryll Olsen says if ever there's a time to invoke the Endangered Species Committee--a rarely used provision of the Endangered Species Act commonly known as the "God Squad"--it's now.
As board representative for the Columbia-Snake River Irrigators Association, Olsen says 25 years of litigation over BiOps designed to mitigate hydropower operations, capped by what he terms a "fish kill" in 2015, prove the ESA isn't working, and that the Federal Columbia River Power System should be exempt.
Other hydropower proponents are supporting a federal bill that would put continuing litigation over FCRPS operations on hold until 2022. HR 3144, introduced in the U.S. House of Representatives by Rep. Cathy McMorris Rodgers (R-Wash.) last June, would allow federal agencies to operate the FCRPS under the 2014 BiOp, while working to develop an EIS and long-term biological opinion.
"We need to take a time out from litigation," says Terry Flores, executive director of Northwest RiverPartners--one of the groups appealing U.S. District Judge Michael Simon's March 2017 spill order. The bill has broad public support, she said, including the cosponsorship of an Oregon Democrat, Rep. Kurt Schrader. "Let's keep this existing BiOp that we know is working and delivering benefits, and allow the agencies to really focus their limited resources on doing a good NEPA process," she said.
But support for the bill is beginning to split along party lines. Washington Gov. Jay Inslee and Oregon Gov. Kate Brown, both Democrats, have issued public statements opposing it.
On Feb. 20, U.S. Sen. Patty Murray and Reps. Pramila Jayapal and Adam Smith, all Democrats, also joined the opposition.
Environmental groups defending the court's spill order say the proposed bill is misleading, and would thwart efforts to protect endangered salmon and to develop a more efficient and reliable power system.
Sean O'Leary, spokesman for the NW Energy Coalition, said his group is disappointed by continuing efforts by the irrigators group to initiate the ESA exemption. "We think it's an unfortunate and a completely unnecessary step," O'Leary told NW Fishletter. He said there is no legal basis to invoke the ESA Committee, as there are still other options that haven't been tried to restore endangered fish, including removal of dams.
Olsen said CSRIA, a defendant-intervenor in National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640], decided not to appeal Simon's spill order, and instead has focused its energy on the ESA exemption. "We realized it would be pointless," Olsen said of the appeal. "We're not going to play this game."
The irrigators, he said, believe they have a better shot at convincing a few top officials that the hydropower system is in jeopardy, and that there's a basis for exempting operations from ESA requirements. He said the turning point came when Simon rejected CSRIA's motion with new information showing that 2017 returning Chinook salmon runs would have been significantly larger if, two years earlier, the agencies in charge had transported at least half of the spring/summer Chinook, and steelhead, past the lower Snake River dams, as outlined in longstanding "spread the risk" policies.
"Our point is, how can you go forward with this kind of spill regime when the plaintiffs had already violated the 2014 spill protocol?" Olsen said. "It's not a small deal."
A "spread the risk" policy ensures juvenile fish are protected in different river conditions by splitting the juvenile downstream journey between in-river migration and barging. Olsen said fish managers knew 2015 was a low-water, high-temperature year, which should have prompted agencies to begin transporting juveniles earlier, so more fish would be transported and not be harmed by warm-water conditions. Instead--and despite two requests from NOAA Fisheries to begin barging fish earlier--the transport program didn't start until May 1, leaving only 15 percent of the juveniles for barging.
Minutes from the April 14 and April 27 Fish Passage Advisory Committee show that a NOAA Fisheries biologist requested twice--offering three alternative proposals--to begin the transport program early, but did not receive support from the rest of the committee. The Fish Passage Center's Draft 2017 Comparative Survival Study shows that four times as many of the 2015 transported juvenile Chinook survived and returned as adults compared with those that migrated in the water.
"The bottom line is--and we've been really blunt--they killed about 65 percent of the run by holding back on the transport," Olsen said, adding, "Things have gotten so bad that, now the very people who are supposed to be protecting the fish are killing them. It doesn't get any worse."
Olsen said CSRIA has been working with federal lawmakers and has had "detailed discussions" with the U.S. Department of Interior, whose secretary would chair the Endangered Species Committee. If convened, the committee would also include the secretaries of the Army and Agriculture, the chairman of the Council of Economic Advisors, administrators of the Environmental Protection Agency and National Oceanic and Atmospheric Administration, and an individual from each affected state.
The irrigators themselves cannot apply for the exemption, however, as only three entities are eligible: the federal agency proposing the action, the state governor where the action is proposed, and the permit applicant related to the agency action.
Still, CSRIA put together a draft application to ease the path for an applicant, which notes that federal courts have remanded BiOps in 2000, 2004, 2008/10 and 2014, and in May 2016 ordered NOAA Fisheries to correct deficiencies in a new BiOp by Dec. 31, 2018, and to prepare an EIS by March 2021.
Since the exemption became an amendment to the Endangered Species Act in 1978, its use has rarely been attempted, and even more rarely invoked. According to a January 2017 Congressional Research Service report, the exemption process is "for those unusual cases where the public benefit from an action is determined to outweigh the harm to the species."
The report also noted, "The exemption process allows major economic factors to be judged to outweigh the ESA's mandate to recover a species when the federal action is found to be in the public interest and is nationally or regionally significant." It noted that issues surrounding an ESA exemption usually signal a much greater struggle over habitat or resources needed to protect a species that are also considered human needs.
In the past 40 years, an exemption has been sought only six times, and granted only twice. But these odds don't faze Olsen. "The God Squad exemption process is in the statute, and we're the poster child for it. There's never been a better fit," he said.
The irrigators' effort comes alongside HR 3144, a bill proposed by several federal lawmakers from the Pacific Northwest who hope to postpone any continuing litigation until 2022, after a new BiOp, and EIS, are complete.
The bill, introduced last June, is sponsored by Washington Republican Reps. Cathy McMorris Rodgers, Jaime Herrera Beutler and Dan Newhouse, along with Oregon Democrat Kurt Schrader and Oregon Republican Greg Walden.
A U.S. Department of Interior official testified in favor of the bill during an Oct. 12 hearing before a subcommittee of the House Committee on Natural Resources. "In our view, HR 3144 aims to allow NOAA Fisheries and the federal agencies responsible for System operations to focus on development of a long-term biological opinion and EIS without diverting resources for preparation of a short term biological opinion to cover the period of 2019-2022," Acting BuRec Commissioner Alan Mikkelsen testified.
He told the subcommittee the bill also aims to reduce litigation during that period. "The need to balance the ongoing operations of the System and achieving compliance with environmental laws is what HR 3144 seeks to achieve," he said.
Jared Powell, press secretary for McMorris Rodgers, told NW Fishletter she hopes language in the bill will either be included in other legislation, or passed by the House and sent to the Senate for consideration. "We're optimistic we could see the bill move this year," he said. He said staff members have also met with CSRIA representatives to discuss their efforts to move the ESA exemption process forward. "Her opinion is, we need to get out of the courtroom now," he said.
Some Democrats and environmental groups disagree. Environmental groups involved in lawsuits with NOAA Fisheries came out opposed to HR 3144 within days of its introduction. In a news release, Earthjustice and Save Our Wild Salmon wrote that the bill seeks to "lock-in status quo hydropower operations in the Columbia-Snake river system that primarily benefit taxpayer subsidized barge transportation and continued capital investments in four expensive and unnecessary federal dams on the lower Snake River that should be removed to help save wild salmon and steelhead and the public's money."
The news release says that a broad coalition of stakeholders, including the State of Oregon, the Nez Perce Tribe, commercial and sport fishermen, and clean energy and conservation organizations opposed the 2014 BiOp, and each of its predecessors since 2001, for failing to protect salmon and steelhead from extinction.
"During the most recent NEPA scoping public comment period, nearly 400,000 people submitted comments calling for removal of the four lower Snake River Dams," it said. "While the bill's sponsors say, 'It is time for science, not politics, to drive our energy and salmon restoration policies,' their approach would do the exact opposite by substituting politics for the rule of law, science and objectivity."
More recently, federal Democrats from Washington joined their opposition. In a letter to congressional leaders from Murray, Smith and Jayapal, they state that "The action agencies are now developing alternatives for detailed evaluation, which we understand range from no changes in operations to 'breaching, bypassing, or removing one or more of the four lower Snake River dams' as mandated by the court." The bill, according to these lawmakers, would "undermine the important, ongoing work on the EIS and BiOp by forcing the use of the 2014 BiOp, which has been found flawed by the court, until September 2022 or until the EIS process is completed."
In a Feb. 22 joint statement, McMorris Rodgers, Newhouse and Herrera Beutler noted that the 2014 BiOp came after years of collaborative work during then-President Barack Obama's administration, involving states, tribes and other local stakeholders.
"Breaching the dams, which provide critical benefits for communities in our state, should not even be an option," they wrote.
Their statement also said electric ratepayers in Washington state will be paying for lost power, including an estimated $40 million from increased spill over dams this year alone. They criticized the Democratic lawmakers who recently came out against the bill.
"They claim to support clean renewable energy, while simultaneously working to destroy hydropower, Washington state's largest source of carbon-neutral, clean energy," the joint statement said. -K.C. Mehaffey
 Riverpartners Seeks Bipartisan Support For House Bill To Protect NW Hydropower
Northwest RiverPartners is urging federal lawmakers to support proposed legislation intended to help protect hydropower in the Pacific Northwest at a time BPA faces financial uncertainty.
The alliance of farmers, utilities and businesses sent a letter Feb. 22 to all U.S. senators and representatives in Washington, Oregon, Idaho and Montana praising the region's congressional delegation for joining together to oppose "ill-advised components of the President's FY19 budget proposal related to the Bonneville Power Administration's transmission assets and rates."
The letter encourages support for HR 3144, a bill introduced by Rep. Cathy McMorris Rodgers (R-Wash.) that would allow the Federal Columbia River Power System to operate under NOAA Fisheries' 2014 BiOp until 2022.
"BPA is facing a crisis: Its power rates are far above market rates, largely driven by uncertainty related to escalating fish and wildlife costs and related litigation, and projected to remain so indefinitely," the letter states. "As you well recognize, as long as BPA is competitive and is able to make its annual payments to the U.S. Treasury on time and in full, the agency is well insulated from political attacks from skeptics outside the region."
The letter notes that the bill would allow the National Environmental Policy Act process to continue, as U.S. District Judge Michael Simon has ordered, while postponing continued court challenges over the BiOp while NOAA Fisheries completes an EIS, and a new, long-term BiOp.
"Without a competitive product to transmit over the wires, BPA will remain in a very precarious position and will be challenged to meet all of its important statutory obligations--for providing power, and for protecting fish and wildlife," the letter continues, concluding, "It is far preferable to take modest, sensible action now to help BPA avoid the financial cliff it faces, then to wait and attempt later to bail out the agency--at enormous costs to regional ratepayers and taxpayers."
Terry Flores, executive director of RiverPartners, said the bill is gaining support. In December, Rep. Raul Labrador (R-Idaho) became a cosponsor of HR 3144, and in late February, Rep. Greg Gianforte (R-Mont.) added his name to the list of sponsors. -K.C. M.
 High Snowpack, Off Line Generator Mean More Spill At Dworshak Dam
The U.S. Army Corps of Engineers agreed Feb. 28 to reduce discharge flows at Dworshak Dam to 16,000 cubic feet per second through March, barring unforeseen changes in runoff predictions or weather causing a sudden spike in the amount of water flowing into Dworshak Reservoir.
The plan was one of three options for operating the dam's outflows this spring, presented to the Technical Management Team by Steve Hall, the Corps' Walla Walla District reservoir manager. Other options included gradually stepping down outflows to 14,000 cfs over the first week of March, or keeping the outflow at 20,000 cfs for another week and then dropping them to 14,000 cfs.
Dworshak Dam discharge was boosted to about 20,000 cfs on Feb. 16 to make room for more water in the reservoir in a spring that, by all forecasts, looks to be above normal for runoff. A recent forecast for water supply in the Clearwater River basin shows runoff at 124 percent of normal, Hall told the TMT. "That's well above average and well above recent years on record," he said. "And we're continuing to build snow at a pretty rapid pace."
Current forecasts call for a total runoff of about 3 million acre-feet, Hall said. So far, this water year is tracking with 2011--the last time the Clearwater basin saw a huge runoff of about 4 MAF. "We don't think inflows [this year] will be that strong, but it's distinctly possible," he said. "But we would have to have a lot more snow accumulate" to reach the 2011 levels.
The Corps must release water from the reservoir now to prevent local flooding and flooding downstream in the Snake River and Columbia River system, as snow begins to melt this spring. "From a flood control perspective, we think making a little bit more space sooner rather than later is a good idea, but relieving the total dissolved gas is something we see as a needful action as well," Hall said.
Handling this much runoff is not usually a problem at Dworshak, John Heitstu-man, Walla Walla District's chief hydrologist, told NW Fishletter. But with Unit 3, the dam's largest generator, off line since September 2016, only about 5,000 cfs instead of 10,000 cfs can run through the powerhouse, leaving the remainder to spill over the top of the dam. That creates higher total dissolved gas levels in the river below, and at Dworshak National Fish Hatchery, which uses Clearwater River water in its hatchery operations. The hatchery is co-managed by the U.S. Fish and Wildlife Service and the Nez Perce Tribe of Idaho.
A second hatchery, the Clearwater Fish Hatchery, is managed by the Idaho Department of Fish and Game, but water supply for that hatchery does not come from the river, so it's less impacted by the higher TDG levels, according to hatchery supervisor Beau Gunter.
High TDG levels stress fish, and can reduce survival rates. The State of Idaho limits TDG to 110 percent, but dam operators can exceed that limit when needed for flood control.
On Feb. 28, before the Corps reduced the spill over Dworshak, dissolved gas was about 122 percent in the river, and 104 percent at Dworshak hatchery, where degassing units help reduce those levels.
Jay Hesse, TMT member and director of research at the Nez Perce Tribe of Idaho's fisheries department, told NW Fishletter the excess spill last spring resulted in trauma to fish at the Dworshak hatchery, which uses water from the river. "We didn't see mortality at unexpected levels in the hatchery, but we did see the gas bubble trauma symptoms, and that can have a cumulative effect on survival later in life," he said. Because of the TDG levels and stress on juveniles, the hatchery re-leased many of its juvenile fish about two weeks early and in different locations last spring.
Hesse said that those juvenile fish survived at normal levels when they reached Lower Granite Dam. More recent data shows that last year's juveniles throughout the system had very low survival rates through the lower Columbia River system, and it's unknown whether higher dissolved gas played a role in those low numbers. He added that the real test will come in two to three years, when they can track how many of these hatchery fish return.
The hatchery is now discussing the possibility of releasing juveniles one or two weeks early again this year, but that decision hadn't yet been made, David Swank, TMT member from the USFWS told fellow TMT members. He said immediately dropping outflows to 16,000 cfs would give the hatchery fish, especially steelhead, a respite before they're released.
Gunter said the Clearwater hatchery's main concern last year was that they'd be releasing their young fish into the river when TDG levels were high, but dam operators were able to reduce spill for three days, providing them a window for releasing into better conditions.
"We have survival estimates for that group, and there didn't appear to be anything that was ab-normal," he said. After last year's experiences, Gunter said "It seems to be going a little smoother. We just hope they can get the turbine in and these problems don't continue for another year."
Hall told the TMT contractors are making "good progress" toward fixing the Unit 3 turbine, and expect to finish sometime in June. -K.C. Mehaffey
 Water-Supply Outlook Encouraging For Columbia, Snake Rivers
A combination of above-normal snowpack in the upper Columbia River Basin and forecasts for a cool, wet spring prompted an encouraging outlook for water supply in the main-stem Columbia and Snake rivers for April to September.
The monthly update was presented in a Feb. 1 webinar by Steve King, senior hydrologist for the National Weather Service's Northwest River Forecast Center. He predicted that the upper Columbia, southern British Columbia and western Montana will experience a summer water supply ranging from normal to "quite a bit above," compared to the agency's 30-year average.
The forecast has improved from a month ago, and includes predictions of water volume at 107 percent of normal at Libby Dam on the Kootenai River, 109 percent of normal on the Columbia at Mica and Grand Coulee dams, and 122 percent of normal at Albeni Falls Dam on the Pend Oreille River.
The forecast for The Dalles Dam on the lower Columbia is now at 107 percent of normal, up from January's prediction at 96 percent.
The upper Snake River is also showing above-normal forecasts, with Palisades Dam at 112 percent and Jackson Lake at 128 percent of normal. Volume in the lower Snake, at Lower Granite Dam, is at 106 percent of normal. Some areas are still forecast for below-normal flows, like Lucky Peak Dam on the Boise River, predicted at 80 percent of normal.
The numbers are based on current precipitation, temperature, snowpack and runoff observations, combined with climate forecasts.
King noted that 60 percent of the regional water supply comes from Canada and western Montana. "So, fortunately from that standpoint, the [snowpack] numbers are pretty healthy," he said.
Whether the forecast holds depends partly on the accuracy of current climate outlook for the next three months. While predictions show warmer-than-normal temperatures in February, the three-month outlook calls for wetter and cooler conditions compared with the 30-year average.
King said the forecast for cooler temperatures over the next three months is "something we haven't seen much of this winter, so we'll see how that shakes out." -K.C. M.
 Northwest Water Supply Outlook Ranges From Well Above To Well Below Normal
Predictions for April-through-September water supply across the Pacific Northwest are all over the place after another month that brought more snow to the north, but left Oregon and southern Idaho much drier than normal.
At a March 1 briefing, NOAA Northwest River Forecast Center's senior hydrologist Kevin Berghoff said the upper Columbia River Basin is predicted to see above normal summer flows ranging from 178 percent of the 30-year average at the Clark Fork River above Missoula, Mont., to 115 percent of normal at Grand Coulee Dam.
The lower Columbia is also projected for above-normal flows--111 percent of normal at The Dalles Dam. The Snake River is predicted to have flows ranging from 122 percent of normal at Jackson Lake Dam to 106 percent of normal at Lower Granite Dam.
But some Snake River tributaries are anticipated to contribute far less water to the system this summer, with only 81 percent of normal flows forecast for Lucky Peak Dam, and 45 percent at Owyhee Dam.
Also of concern, Berghoff said, is the early runoff occurring everywhere in the region except Canada. "The early runoff is a sure sign we're losing our snowpack too fast--something we'll continue to watch through the season," he said.
Warmer temperatures in January and February have already adversely affected snowpack in some areas, Berghoff said. But snowpack in the upper Clark Fork, at 158 percent of normal, and Bitterroot, at 132 percent of normal, are ranked in the top 10 for the last 47-year records, he noted. Meanwhile parts of Oregon and southern Idaho are well below normal, such as the Willamette River basin, with about 61 percent of its normal snowpack.
This winter's precipitation in the upper Columbia has been between 100 and 127 percent of normal so far, since October, while precipitation in the Snake River Basin has ranged from 75 percent to 90 percent of normal, Berghoff said.
He said the Snake exception is the Clearwater River, "which tends to be more similar to the upper Columbia in precipitation and temperature." The season's total precipitation there so far is about 121 percent of normal. -K.C. M.
 Drought Likely In Eastern Oregon
Drought conditions in eastern Oregon are likely to persist in some areas and develop in others over the next three months, according to NOAA Climate Prediction Center's Feb. 15 monthly outlook.
Drought is projected to persist in the central part of the state, and is likely to develop throughout southeastern Oregon.
Jake Crouch, a climate scientist at the CPC, said the West Coast experienced warmer-than-normal temperatures in January. That caused rain instead of snow in some areas, including the south Cascades. "The lack of snow in this part of the country can cause water resource issues as we move into the warm and dry season," he said. About 36 percent of the land in the lower 48 states, stretching from Oregon to Texas, is experiencing drought conditions, he said.
Washington, Oregon, Idaho and Montana are expected to experience cooler-than-average temperatures in March, persisting through May except in the southern half of Oregon and Idaho. Washington and Oregon are projected to have average precipitation, while Montana and northern Idaho face above-average precipitation.
These patterns are being influenced by continuing La Niña conditions, according to Dan Collins, a seasonal forecaster at the CPC. Collins said La Niña tends to lead to below-normal precipitation in the southwest, and above normal across much of the northern U.S. -K.C. M.
 Sea Lions, Seals Play Significant Role In Salmon Losses, Federal Biologist Reports
Sea lions and seals below Bonneville Dam are consuming far more salmon than previously thought as the fish swim back to their spawning grounds.
An ongoing study by NOAA's Northwest Fisheries Science Center suggests that each year since 2010, these carnivorous mammals are eating between 11 and 42 percent of the spring/summer Chinook run in the 145-mile stretch of river from the Pacific Ocean to Bonneville Dam, NWFSC fisheries biologist Michelle Wargo Rub told the Northwest Power and Conservation Council Feb. 14.
That translates to between 20,000 and 35,000 Chinook salmon in most of the study years, although losses jumped to more than 100,000 salmon in the high-percentage-loss years of 2014 and 2015.
The losses, and percentages, vary depending on water temperature and timing of the run, flow levels, the spill at Bonneville Dam, and abundance of smelt, among other factors, Rub told the Council. "As much as we're understanding more, the picture's becoming a little more complicated," she said.
Her updated report comes as governors of Oregon, Washington and Idaho are urging Congress to support proposed bipartisan legislation that could help reduce sea lion predation.
State agencies do have some ability to control California sea lions. In 2016, NOAA Fisheries agreed to allow the three states to continue killing these mammals seen preying on salmon, and that do not respond to efforts to scare them away with hazing. The proposed new legislation would give local agencies the ability to act more quickly.
In her presentation to the Council, Rub said her study's primary goal was to see if seals and sea lions were significantly impacting salmon returns. At the time, she said, there were concerns over increasing numbers of pinnipeds below Bonneville Dam. Since then, she said, "The population basically exploded." NOAA Fisheries reported in January that California sea lions have "fully rebounded," and now number around 250,000 animals. Steller sea lions and harbor seals also dine on returning salmon and steelhead.
To determine their impact on returning salmon, Rub captured, marked and released thousands of fish near the mouth of the Columbia, tracking them as they move upriver to spawn. NOAA Fisheries contracts with commercial tangle-net fishermen in the spring, who catch adult Chinook near Astoria, Ore., during a 25- to 30-day period after Chinook return. Those fish are then pit-tagged, unless already tagged, and returned to the river.
After calculating survival of fish that make it past Bonneville Dam, Rub can determine how many fish died below Bonneville Dam. Once losses from harvest and handling are subtracted, she ends up with "unexplained mortality." Rub said she's confident most of the loss is due to predation.
Those spring/summer Chinook losses ranged from a low of 11 percent of the returning run in 2010, to highs of 43 percent in 2014 and 37 percent in 2015. But although sea lions have continued to come up the Columbia River over the last two years, predator mortality dropped off to 14 percent in 2016, and to 24 percent in 2017. Rub said 2014 and 2015 may have been unusual years, as California sea lions were driven north in search of food due to warm ocean conditions, and a lack of food off the coast of California.
"The relationship between survival and sea lions is complicated. It's not just the absolute number of sea lions" in the Columbia that causes an increase in salmon losses in that stretch of river, she said. The timing of the Chinook run also has a strong connection with predation losses, as some runs arrive after California sea lions have left the area. Fish populations that arrive in the lower river early are "likely receiving the brunt of the predation," she said.
Other factors, too, either contribute or detract from predator success, she said. Data so far suggests that spill over Bonneville Dam helps Chinook survival from sea lions--perhaps because the increased turbulence allows more fish to escape predators--although she hopes to conduct more research to determine why.
A good smelt season hurts chances of survival, she said, which is counter to initial assumptions that more smelt would help, by offering predators an alternative food source. "But if you look at the timing, [smelt] often arrive before the spring run," she said. Scientists realized that a good smelt season tends to draw sea lions into the river, and they continue to feed on Chinook when they arrive.
Rub said her study, for the past two years, has used radio telemetry to determine where the returning fish are being killed. In 2016, she said, 48 percent of the losses were in the tailrace at Bonneville Dam, where large numbers of California sea lions congregate. Many of the remaining losses were in the estuary, and few were lost in the middle portion of the lower river. In 2017, sea lions appeared to shift their position; only 25 percent of Chinook mortality occurred directly below Bonneville, she said, with most occurring in the estuary.
Rub said in future years, she hopes to use radio telemetry to help determine survival and loss in Columbia River tributaries, and strengthen the correlation between other variables that impact salmon losses from the estuaries to Bonneville Dam.
Idaho Council member Bill Booth commended Rub for her work. He said until now, NOAA Fisheries believed predators below Bonneville killed only 3 to 5 percent of returning fish. "Those low numbers were kind of considered insignificant by some," he said, adding, "Now we have this data that shows it's more like 20 to 30 percent, which is very significant." -K.C. Mehaffey
 Sea Lions Being Relocated To Save Willamette Steelhead
A California sea lion that has frequented Willamette Falls on the Willamette River since 2009 to dine on salmon and steelhead was relocated Feb. 7 to a beach south of Newport, Ore. Three days later, he was back at Willamette Falls, hungry for more fish after a return journey involving a 200-mile swim. Another sea lion--relocated a day later--was back in six days.
The Oregon Department of Fish and Wildlife says Willamette steelhead are on the verge of extinction, due to a growing number of sea lions that find their way to this easy fishing spot at the falls each year. A program to capture and relocate sea lions is the agency's latest effort to discourage these predators, now considered one of the greatest threats to the survival of wild Willamette steelhead, as well as Willamette Chinook, sturgeon and lamprey.
Last year, an all-time low of 512 steelhead crossed the falls after sea lions gobbled up about 25 percent of returning adults. This year, so far, 527 steelhead have made it over the falls in another year of predicted low returns. Steelhead will continue to migrate through May, but the run typically peaks in late February and March.
The agency, which has permission to euthanize California sea lions that prey on salmon at Bonneville Dam, applied in October 2017 for authorization to kill sea lions at Willamette Falls, and expects a decision sometime late this year.
The issue is primarily an unintended consequence of the Marine Mammal Protection Act, which puts strict limits on what the state agency can do, even while trying to protect threatened or endangered fish, Shaun Clements, ODFW's senior policy advisor told NW Fishletter in an email.
A recent study by NOAA's Northwest Fisheries Science Center found that sea lions are also responsible for taking a significant portion of the returning spring and summer Chinook below Bonneville Dam.
Clements noted that sea lion recovery has been wildly successful, to the point where there's not enough habitat to support a growing population. Instead, the mammals are moving into new environments, and have discovered the Columbia River as an abundant feeding ground.
This situation has grown over time. In the late 1990s and early 2000s, two to four sea lions could be seen catching fish at Willamette Falls, he said. Last year, there were as many as 41 in a day, all eating about three fish every day. In addition, the California sea lions--all of them males--are arriving at the falls from their breeding grounds in California earlier in the season, and staying longer. And now, biologists are spotting them at the Clackamas River, downstream of Willamette Falls.
In 2010, ODFW started hazing the sea lions, hoping to scare them away from the fish ladder entrances at the falls. Their attempts included using underwater firecrackers, and pyrotechnics discharged from a 12-gauge shotgun. Those attempts were generally unsuccessful. Once the sea lions got used to the noise, they would continue fishing, or quickly resume foraging when hazing ended for the day.
In his email, Clements said removing, or euthanizing, the relatively few sea lions that habitually return to Willamette Falls to eat steelhead, salmon, sturgeon and lamprey will have no impact on the sea lion population. Authorization would likely come with limits.
Currently, both Washington and Oregon have authority to euthanize up to 93 California sea lions each year that are eating threatened salmon and steelhead at Bonneville Dam. But before action is taken, those sea lions must be individually identifiable, and the agencies must show they were not responsive to hazing. They must also be seen eating salmonids in the Bonneville Dam area for at least five days between Jan. 1 and May 31 of any year.
According to Oregon's application to euthanize sea lions at Willamette Falls, California sea lions have recovered from fewer than 75,000 individuals to nearly 300,000. The application notes that multiple factors unrelated to sea lions were the initial cause of declining Willamette fish populations--primarily the impact of dams for hydropower and flood control, along with harvest and hatcheries.
Regardless of why fish numbers initially dropped, the application states, "in areas where salmonid abundance is low, even a modest increase in predation by pinnipeds can result in serious negative impacts to the survival and recovery of individual salmonid populations."
Clements noted in his email that although predation is a recent threat, if nothing is done, investments made to address other threats to salmon and steelhead recovery are at risk. "Sea lions are not a scapegoat for addressing other threats to fish persistence. That work is ongoing and the region continues to invest millions in recovering salmon/steelhead," he wrote. -K.C. Mehaffey
 ISAB Offers Recommendations For Upper Columbia Spring Chinook Recovery
Prompted by the slow recovery of naturally spawning spring Chinook salmon in the upper Columbia River Basin, the Independent Scientific Advisory Board conducted a 10-month review of recovery efforts in the Wenatchee, Entiat and Methow rivers.
The ISAB provided numerous recommendations in a 246-page report, released Feb. 9 and shared at the Feb. 13 Northwest Power and Conservation Council meeting.
Two ISAB members--Stan Gregory, professor emeritus of fisheries at Oregon State University, and Steve Schroder, retired fisheries consultant and research scientist at the Washington Department of Fish and Wildlife--offered to the Council an overview of their work. And while the ISAB report included several recommendations for fish managers in the upper Columbia, the scientists also commended the fish managers' efforts, methods and cooperation with the ISAB during the review.
Part of the report, and the discussion before the Council, focused on the extra challenges that upper Columbia spring Chinook salmon face compared with summer Chinook in the same region and with spring Chinook returning to the Snake River Basin.
The review was initiated by the ISAB's Administrative Oversight Panel, which asked the board to evaluate habitat assessment, research and monitoring, and prioritization and coordination of recovery actions fish managers have taken for these spring Chinook, listed as endangered in 1999. The scientists met with tribes, state and federal agencies, PUDs and local groups involved in salmon recovery.
Gregory told the Council that measuring the success of spring Chinook returning to the upper Columbia against those returning to the Snake River can be seen as an apples-to-apples comparison, "but if they're apples, they're different-sized apples." He noted that the upper Columbia area includes three subbasins totaling 2.3 million acres, compared with 26 subbasins covering 28 million acres in the Snake River drainage. Additionally, the Snake River is a rain-dominated basin, compared with largely snow or rain-on-snow precipitation in the upper Columbia.
According to the review, the Snake River populations are also more abundant, leading to their threatened status, compared with the more dire endangered listing for upper Columbia springs. With fewer numbers, an adverse event--such as a year when a high percentage of adults are taken by predators in the lower Columbia River--can pose an even greater risk for the upper Columbia populations than for the Snake populations, the report said. As an example, the review noted, in years when returning spring Chinook are low, their chances of finding mates on the spawning grounds are reduced.
Gregory told the Council that, adjusting for size differences, most measures of abundance and productivity of spring Chinook, their habitat, their in-river survival and their smolt-to-adult ratios in the two regions are similar.
Schroder told the Council they also compared spring Chinook with summer Chinook in the upper Columbia. According to the review, summer Chinook have not always been predominant compared with springs in the upper Columbia. Yet from 1988 to 2016, an average of 1,241 natural origin spring Chinook returned to the Wenatchee, Entiat and Methow subbasins, while natural origin summer Chinook returned at an average of 12,572 per year.
Schroder said summer Chinook appear to have numerous survival advantages, largely due to the timing of their migration, both upstream and downstream. As juveniles, spring Chinook often miss out on voluntary spills at Columbia River dams, which generally come after most springs have headed downstream.
Spring Chinook also spend more time in rivers and streams, leaving them more prone to predation. As adults, they're more likely to encounter rougher waters, and spend more time in the lower Columbia River--more than a month--making them more vulnerable to predators. And as spawners, they contend with summer Chinooks, which show up in the streams later, and can "superimpose" their own redds on top of the springs' redds.
Finally, Schroder said, because they're so scarce, not many spring Chinook are used for hatchery broodstock, leaving the wild fish more prone to domestication from stray hatchery fish.
Listed as endangered in 1999, spring Chinook include three distinct populations in the upper Columbia--the Wenatchee, the Entiat and the Methow--as well as an extinct population in the Okanogan River. In 2007, the Upper Columbia Salmon Recovery Board and the National Marine Fisheries Service (now NOAA Fisheries) developed a recovery plan for both spring Chinook salmon and steelhead. Its goal is to "secure long-term persistence of viable populations of naturally produced spring Chinook and steelhead distributed across their native range."
According to the ISAB report, recovery must include viable numbers of fish, a low risk of extinction, fish distributed across their habitat and genetic diversity. Although major recovery after 10 years would be unlikely, the review said, the slow recovery after more than 300 habitat projects raises questions about the lack of improvements.
The review noted that by the time these fish were listed as endangered--and even before construction of some of the major dams on the Columbia River--upper Columbia runs had already declined greatly due to "overfishing, mining, logging, grazing, agriculture, water withdrawal, and growth of towns along the river." In addition, the construction of Grand Coulee Dam in 1939 "has compressed 1,140 miles of river used for anadromous migration to less than 677 miles."
A long history of hatcheries in the region contributed to the decline, the review said. Fish managers at the time collected some broodstock from the lower Columbia River, and those stocks were mixed with upriver stocks. "The history of human decimation of salmon populations, mixing of stocks, and hatchery practices likely weakened or homogenized the prehistoric adaptation of Chinook salmon to the local physical, environmental, and biological characteristics of the [upper Columbia River] basins," the review noted. It said that recent DNA study analyzing DNA from prehistoric and contemporary Chinook salmon found a greater loss of genetic diversity in upper Columbia stocks compared with those in the Snake River.
Gregory said the upper Columbia models are useful for ranking projects, but suggested that fish managers could better coordinate their efforts to develop a more cohesive process.
Recommendations in their review included providing an analysis on cost-effectiveness of proposed projects to determine priorities; giving high priority to projects that restore key ecological processes and resiliency to climate change; and developing a research, monitoring and evaluation plan that encompasses impacts of habitat, hatcheries, harvest and hydroelectric operations in spring Chinook throughout their life cycle.
Gregory added, "We do see the upper Columbia River program as a very strong program. They're using scientifically sound approaches," he said.
Fish managers were also eager to provide information, and to learn from the ISAB's review. "We see that as a sign of a very healthy program," he said. -K.C. Mehaffey
 BPA Proposes Deal With Idaho Over Operations At Albeni Falls Dam
BPA reached a proposed agreement with the State of Idaho that would cost the federal agency nearly $24 million to mitigate for environmental damages from construction, inundation and opera-tions at Albeni Falls Dam in northwestern Idaho.
Bill Booth, an Idaho Department of Fish and Game official as well as one of the state's mem-bers of the Northwest Power and Conservation Council, explained the draft proposal to the rest of the Council Feb. 13.
Booth said Bonneville spends about $600,000 annually to offset damages caused by operating the dam, mostly due to erosion to the shoreline on Lake Pend Oreille. Under the proposed agreement, he said, those costs would be eliminated, as funds would be put into a stewardship endowment account that would pay for continuing damage-control costs.
Chip Corsi, regional supervisor for Idaho Fish and Game, said the lake loses about 15 acres of prime wildlife habitat each year due to erosion. The state and others have been working to restore some eroded land along the Clark Fork River delta, with successful results. The agreement would re-solve remaining construction and inundation settlement, while operational costs would be revisited af-ter 30 years.
The proposed agreement was open for public comment until Feb. 23. -K.C. M.
 Council Committee Recommends Pacific Lamprey Funding
The Northwest Power and Conservation Council's Fish and Wildlife Committee has recom-mended spending $248,204 this year on three projects to help restore Pacific lamprey.
Lamprey are considered important to the ecosystem, with important cultural value to tribes in the Columbia River Basin.
The funds would come from a cost-savings program derived from existing projects with de-creased expenditures, or closed-out projects.
Pacific lamprey were once abundant throughout the Snake and Columbia rivers and their tribu-taries, numbering in the hundreds of thousands. The population has been drastically reduced through-out their range, from the mouth of the Columbia River to Chief Joseph and Hells Canyon dams.
The three proposed projects include improving adult passage at Prosser Dam in the lower Yakima River, funded at $40,000; translocating adult lamprey past lower Snake River dams, funded at $30,000; and enhancing the lower South Fork McKenzie River's floodplain, funded at $150,000.
The committee expects to take its funding request to the full Council next month. -K.C. M.
 Lower Columbia Fishing Policy Under Review
Washington state's policy on commercial and recreational fishing in the lower Columbia River is under review, and could be modified if adjustments are recommended.
The Washington Department of Fish and Wildlife is beginning a review of the 2013 policy, which is similar to Oregon's, and which aims to conserve salmon, create new opportunities for recrea-tional fishing and shift commercial gillnet fishing away from the Columbia's main channel. The cur-rent policy also calls for increasing hatchery releases in the lower Columbia, reducing the number of gillnet permits and expanding alternative fishing gear used by commercial fishing outfits.
Bill Tweit, a special assistant for the agency, told NW Fishletter that the Washington Fish and Wildlife Commission asked staff for an in-depth report on the policy's benefits to recrea-tional fishing, and the health and sustainability of commercial fishing since the new policy was adopted.
Advisory groups for both commercial and recreational fishing will meet March 14, followed by the commission's March 15-17 meeting, to discuss how the existing policy is working, and whether adjustments should be made.
If the agency seeks to revise the policy--last revised in January 2017--the commission would consider those changes later this year, with tentative plans to meet with the Oregon Fish and Wildlife Commission in September to conclude the review and decide on revi-sions. -K.C. M.
THE ARCHIVE :: Previous NW Fishletter issues and supporting documents.
NW Fishletter is produced by Energy NewsData.
Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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