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NW Fishletter #380 April 2, 2018

[3] Spring Spill: What's At Stake In The 9th Circuit Court Appeal?

On March 20, the 9th U.S. Circuit Court of Appeals heard arguments, mostly about legal issues, for overturning or upholding the lower court's order to spill as much water as is allowed, night and day, under state water-quality laws at eight federal dams on the Columbia and Snake rivers.

Their ruling on April 2 to uphold the court-ordered spill will have several impacts.

Some believe the U.S. District Court order to spill more water over the dams from April to mid-June will result in higher electric rates and less flexibility for dam managers at a time when the BPA is struggling to stay competitive. Others think the order, if upheld, would significantly aid the downstream migration of juvenile spring Chinook and steelhead in the Columbia and Snake rivers, eventually resulting in higher adult returns--a much-needed boost to endangered and threatened wild runs.

BPA wouldn't discuss the potential for electric-rate increases because of the pending litigation. However, an estimate of lost revenue filed a year ago in the underlying district court case--National Wildlife Federation et al. v. National Marine Fisheries Service et al., [01-CV-00640]--said the increased spill this year could result in the loss of 815 aMW of generation and $40 million of revenue from reduced sales of surplus energy and the potential that Bonneville would have to purchase power to fulfill customer obligations.

The estimates--submitted Feb. 9, 2017, in a declaration by Kieran Connolly, VP of generation and asset management--also noted that 840,000 tons of carbon would be added to the environment when electric consumers turn to fossil fuels, mostly natural gas, for a larger portion of their electricity needs.

The methodology used to make the estimates served as the basis for BPA's spill surcharge, which was implemented in the agency's latest rate case. The surcharge will be triggered if lost revenues exceed $5 million.

Connolly's estimates won't necessarily apply if the surcharge is triggered, however. In rate-case testimony discussing the spill surcharge, BPA staff noted that while the two methodologies are similar, the costs calculated in the spill surcharge "will likely be different" than those used in Connolly's declaration because the federal generation assumptions and market prices will have changed [BP-18-E-BPA-55].

Proponents of hydropower say they're expecting Bonneville's rates to go up about 2 percent, possibly less, based on the loss of 815 aMW of power, and the BPA surcharge that will come into play when additional spill is required. That's on top of a recent 5.4-percent increase to hydropower customers over fiscal year 2018-2019.

It's not just the 2-percent hike that concerns them.

"We're worried that they're going to start to enter a spiral down which they can't stop," Terry Flores, executive director of Northwest RiverPartners told NW Fishletter. Flores said BPA's continuous rate increases, which have already gone up 30 percent since 2008, are unsustainable. "It's what I would call 'death by a thousand cuts,'" she said.

Flores said while this potential rate increase may seem small, it needs to be seen in context of BPA's current position in the wholesale energy market. In a Feb. 22 letter to Northwest senators and congressmen, RiverPartners stated, "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."

Flores said it's a big financial hit to BPA at a time when they're clearly struggling. To her, it makes more sense to focus on ensuring more adults return to spawning grounds now, by putting more limitations on harvest. Ultimately, she said, by undermining BPA's stability, the spill order brings environmental groups one step closer to their goal of removing hydroelectric dams. She anticipates that if the spill is upheld, it would result in a lot more legal action, including attempts to keep the new spring spill in place until NOAA Fisheries completes an environmental impact statement in 2021 for operating the Federal Columbia River Power System.

Scott Corwin, executive director of the Public Power Council, said the 2-percent increase will be felt by homeowners and renters--especially people with lower incomes; and by businesses--especially those that require larger amounts of power. "There is an impact to the economy in the Northwest," he said.

One of the benefits of hydropower is its ability to fill the region's power needs when demand is high, or when other energy sources are unable to generate, Corwin noted. The spill order "takes away some of the flexibility that is one of the best aspects of hydropower," he said.

Corwin noted that, under NOAA Fisheries' 2014 BiOp, dam operators were already planning a tailored spill in the spring to help fish runs, although not the continuous spill that the court ordered. "The bottom line is, there's a clear economic hit, but very uncertain biological benefit to it. From a consumer standpoint, that's not a good equation."

Darryll Olsen, board representative for the Columbia-Snake River Irrigators Association, said electricity is the highest variable operational cost for irrigators. But the increased spring spill will also add maintenance costs to an irrigation system. This level of spilling water stirs up a lot of debris in the river, he said. "That causes us to have to clean the intakes like crazy," Olsen said.

Also at stake, he said, is the hydro system's "spread-the-risk" policy that splits up the downstream migration methods for juvenile fish between those that remain in the river, and those that are transported around the dams. "Our concern is that the protocol just evaporates" with the spill order, he said. In low-water years, fish that are transported have higher returns than those that remain in-river. "This year, we're not going to have the low-water problems, but it locks [the spill program] in. That's the problem," he said.

But the biggest question is how the court-ordered spill would affect fish returns. Spilling more water pushes more juvenile spring Chinook and steelhead over the dams instead of through powerhouses on their way to the ocean. But scientists don't agree on the potential benefits.

"What's at stake for the fish is their very survival. These fish are in trouble," Jim Martin, retired chief of fisheries at the Oregon Department of Fish and Wildlife, told NW Fishletter. He said wild spring Chinook and steelhead runs are not rebuilding. "We think the science clearly suggests that more spill, particularly for spring Chinook and steelhead, will be beneficial." He said part of that science comes from looking back at years when the hydro system was forced to spill more water over dams because of extremely high runoff. "The fish came back overwhelmingly," he said.

Liz Hamilton, executive director of Northwest Sportfishing Industry Association, said fishermen keep journals tracking river conditions and subsequent returns. "They noticed a long time ago that when we had big spills, we had corresponding big returns," she said. Hamilton said out-migration is the biggest limiting factor in terms of what people can control. The added spill order comes at a time when energy prices are usually low, she said. "With 200 dams, all going full tilt with all the rain and snow melt--that's the time of year when we could have a win-win for the fish." The win for fish could be huge, she said. "The models are suggesting we could more than double the returns of spring Chinook."

It turns out, however, that putting a number on potential adult returns under the court-ordered spill is not that simple.

"They think it's going to produce this massive increase, but other modeling shows very different results," said Michael Milstein, spokesman for NOAA Fisheries, which is appealing the court-ordered spill. Modeling done by NOAA Fisheries suggests that compared with adult returns under their 2014 BiOp plan, the gain in adult survival rates will be relatively small and could even be negative. "But again, that's modeling, and modeling is necessarily a type of informed speculation," he said.

Milstein pointed to several factors that can impact juvenile survival. With more spill, fewer fish will be collected above the dams and transported, he noted. "When you transport fewer fish, we know that in most years, particularly at certain times of the year, fish that were transported return at a significantly higher rate than fish in the river," he said.

Dynamics below each dam also change with more spill and can make juvenile fish more vulnerable to predators. There's also the potential to lose juveniles to gas bubble disease, caused by too much total dissolved gas (TDG) in the water. The fish will be closely monitored for signs of trauma, he said, adding, "We're going to be watching it, just like everybody else."

Michele DeHart, manager of the Fish Passage Center, which produces the annual Comparative Survival Study (CSS), said in an email to NW Fishletter that modeling indicates that spill, ocean conditions and flow are among the most important variables in determining how many adults return. Return rates go down among juveniles that pass through a powerhouse, while those that pass over the spillways have higher estuary and first-year ocean survival, she wrote.

"CSS analysis indicates that for each powerhouse passage smolt-to-adult return rate is decreased by a relative 9 percent-13 percent compared to juvenile migrants that pass over a spillway," she wrote. The benefits of spill, she added, are greater in years when runoff is lower.

The 2017 CSS report states, "In a fully impounded river, we predict a 2- to 2.5-fold increase in return abundance above BiOp spill levels when spill is increased to 125 percent (TDG)." The court's order, however, does not require spill at 125 percent TDG levels, as dams are limited by state water quality laws to what's known as gas cap spill levels, which are lower than the 125 percent TDG.

In her emailed response, DeHart pointed to a March 5 letter from the Oregon Department of Fish and Wildlife to the Independent Scientific Advisory Board for answers to questions about benefits to fish from the court-ordered spill levels. It states that "prospective simulations conducted by CSS predicts increasing spill from BiOp to gas cap spill levels will provide an approximate 20-percent increase in SARs [smolt-to-adult ratios] for Chinook salmon and steelhead."

Signed by Ed Bowles, the agency's fish division administrator, the letter also states, "CSS simulations indicate that neither BiOp nor current gas levels of spill are likely to provide survival benefits (i.e., in the form of SARs) necessary to achieve survival and recovery goals."

The letter suggests the ISAB should consider "whether spill increased to the biologically safe level of 125 percent TDG provides a pathway to achieve survival and recovery goals in practice." -K.C. Mehaffey

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NW Fishletter is produced by Energy NewsData.
Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
Phone: (206) 285-4848 Fax: (206) 281-8035

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