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NW Fishletter #381 May 7, 2018

[3] Ninth Circuit Upholds Spill; Plaintiffs And Defendants React

The 9th U.S. Circuit Court of Appeals has upheld a lower court's order to spill more water and juvenile salmon over spillways at eight federal dams, which began on April 3.

In the published opinion issued April 2, the panel of judges found that U.S. District Judge Michael Simon did not abuse his discretion in agreeing to order spill to spill cap levels from April through mid-June this year.

Plaintiffs in National Wildlife Federation et al. v. National Fisheries Service et al. said the ruling means baby salmon migrating downstream now will get much-needed protections, which will later provide better adult returns.

Northwest RiverPartners--an intervenor-defendant in the case--said the ruling ignores the strides that have been made in recovering listed fish, and plays into the hands of groups looking to increase the costs of operating dams.

After an expedited hearing on March 20 the decision, written by Chief Judge Sidney Thomas, systematically rejected the arguments made by federal defendants and intervenor-defendants. It held that Judge Simon conducted a "proper irreparable harm analysis," and "was not required to find a short-term extinction-level threat to listed species" in order to issue the injunction requiring spill to spill cap levels from April through mid-June.

Thomas also wrote that "the district court did not err when it found harm from the operation of FCRPS dams as a whole, rather than from only spill-related components." And, "The district court also properly concluded that plaintiffs had adequately shown harm to themselves as a result of harm to listed species."

Thomas turned to language in the Endangered Species Act in explaining the decision. "The 'plain intent' of Congress in enacting the ESA was 'to halt and reverse the trend toward species extinction, whatever the cost," he wrote. That can be done in "incremental steps" that will protect remaining members of a species, he added.

The ruling means the spill surcharge approved as part of BPA's fiscal-year 2018 rate case will likely move forward. The surcharge would be set to recover "lost revenues" due to the extra spill if they exceed $5 million, based on a retrospective analysis.

In a statement, BPA said it is still analyzing the full impacts of the court decision and will make more information available in the coming weeks. "This decision creates a new multi-million-dollar obligation for the region's ratepayers. As we stated in our newly released agency strategic plan, achieving the full scope of BPA's mission requires a careful balance between sometimes competing objectives."

In response to questions from NW Fishletter, BPA spokesman David Wilson said in an email that BPA expects to be able to calculate the spill surcharge and start the public process by the end of May. That process includes making public the data and assumptions used in the calculations. A public meeting would also be held to describe the calculations, followed by a public comment period, before the amount, rate and adjustment are finalized.

To help avoid cash flow problems for BPA customers, the spill surcharge includes a provision that would allow it to be spread out in a flat monthly amount over the remaining months in 2018 and throughout 2019, Wilson indicated.

The extra spill is not a simple matter for the U.S. Army Corps of Engineers, which operates the eight dams and now must maintain spill at the highest flow possible without exceeding water quality standards for total dissolved gas. "We will use our expertise and best professional judgment to implement this operation and maximize spill up to the state limits," Julie Ammann, chief of the Reservoir Control Center for the Corps' Northwestern Division, said in a statement. "There are many factors that influence total dissolved gas, so managing spill at all our lower Snake and lower Columbia River dams will be challenging."

According to the District Court's January 2018 spill order, "Spill cap estimates are influenced by several factors that cannot be precisely predicted," including total flow, wind, ambient temperature, barometric pressure, incoming TDG from upstream projects and travel time from the upstream projects. There are also operational factors, such as spill level, pattern, tailwater elevation, proportion of flow through the turbines, and project configuration. Ammann said that her agency has been working for the past year to prepare for the new spill order, and will closely monitor the system and respond to any unintended consequences.

Terry Flores, executive director of Northwest RiverPartners--an intervenor-defendant in the case--told NW Fishletter that she's disappointed that the 9th Circuit based its decision on studies conducted by plaintiffs, including the state of Oregon, while apparently ignoring the science brought by federal agencies that are supposed to determine how best to recover endangered fish.

"It's very clear--since the 9th Circuit Court backed this up--that the plaintiffs are going to be running the federal hydro system through the district court," she said.

The decision wasn't entirely unexpected, Flores said. "This was the same panel that backed up Judge Redden's 2005 summer spill order, so we all knew it was an uphill battle." But, she said, she's concerned that the courts are buying into the erroneous idea that, despite significant recovery, salmon and steelhead are in a perilous and precarious state, "and if we don't take some draconian measures, like more spill and removing dams, these fish are going to go extinct."

Flores added that she believes plaintiffs are working to increase the costs to the point where it's no longer financially feasible to continue operating the dams. "It also suggests that if ever there was a situation where Congress needs to step in to help, this is it," she added.

In a press conference on April 2, Rep. Dan Newhouse, R-Wash., said HR 3144, a bill to keep spill operations at 2014 BiOp levels until 2022, is advancing to a House committee for consideration, and may go to a full vote of the House later this month.

Joseph Bogaard, executive director of Save Our Wild Salmon--a coalition of organizations with many member groups that are plaintiffs in the case--told NW Fishletter that instead of trying to overturn an injunction designed to help fish recovery, he's hoping federal agencies will put their energies toward real solutions for recovering fish. "This isn't a question about whether we know enough," he said. "This is a question about whether we're willing to take the actions that will ultimately protect salmon and begin to rebuild them."

Bogaard said he's hoping the court's decision will convince everyone to work together to design a new recovery plan that is based in science. "This is an important win for salmon, and fishing communities, and hungry orca in the region," he said. "It comes at a time when salmon populations continue to head in the wrong direction."

Todd True, Earthjustice attorney who represented conservation and fishing advocates, said the science pretty clearly shows that more spill over these eight dams will help threatened and endangered salmon and steelhead. "It's a significant reduction in mortality, or increase in survival," True told NW Fishletter. He said after reviewing the evidence, the 9th Circuit agreed. "It's a very straight-ahead ruling that addresses the arguments from the other side very squarely and explains why they aren't right," he said.

True said while the spill order is only in place this year, he's hoping to work with the federal agencies to determine how much water will be spilled in future years. "I think we and Oregon and the other parties would always rather do what we did last fall, and into January, which is have the scientists sit down and figure out what makes the most sense. That's how we got to a specific order on how to implement the spill injunction," he said. -K.C. Mehaffey

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Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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