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Groups Request Injunction to Stop Reduced Spill Plan by Barry Espenson Columbia Basin Bulletin - July 23, 2004

As promised, a coalition of fishing and environmental groups has asked a federal court to stop a plan that would eliminate August spill at federal hydroelectric projects that is designed to improve passage, and survival, for fall chinook salmon that are listed under the Endangered Species Act.

The motion filed July 17 in U.S. District Court in Portland requests a preliminary injunction prohibiting the Corps of Engineers from implementing the spill reduction and forcing NOAA Fisheries to withdraw its endorsement of the plan.

The state of Oregon and four Columbia River treaty tribes filed briefs in support of the motion.

The legal action was taken within the context of the National Wildlife Federation vs. National Marine Fisheries Service (now NOAA Fisheries) lawsuit in which the legality of NOAA's 2000 Federal Columbia River Power System biologicial opinion was challenged. Judge James A. Redden in May of last year ruled the BiOp's ESA jeopardy conclusion was arbitrary and capricious. He later ordered that its flaws be corrected during the course of a year-long remand.

The BiOp is a biological review of planned hydrosystem operations and a judgment of whether those operations pose jeopardy to, in this case, salmon and steelhead listed under the ESA. The 2000 BiOp said eight of the 12 Columbia Basin ESA-listed salmon and stocks were jeopardized but the document proposed 199 actions NOAA felt would improve survival enough to avoid jeopardy.

The request for an injunction says that the spill reduction plan takes away one of the key survival improvement actions used in making that no-jeopardy conclusion for Snake River fall chinook salmon. The groups filed a motion earlier this month asking that the Corps, which operates the dams, be added as a defendant in the lawsuit.

"… the decision to depart from the mitigation requirements of the 2000 FCRPS BiOp and eliminate summer spill in August poses an immediate and serious risk of irreparable harm to Snake River fall chinook, far above the level of harm already acknowledged by the agencies," according to the motion filed by Earthjustice for the 19 fishing and conservation groups, including the NWF, that are plaintiffs in the lawsuit. "…(explaining that summer spill is one of the most critical mitigation measures for these fish, that fall chinook juvenile survival has declined since 2000, that the agencies' analysis of the impacts of curtailing spill is unreliable, and that the impacts may well be much larger than the agencies admit).

"Moreover, the single 'offset' that the Corps has proposed is highly unlikely to offset the harm of curtailing spill: at the very best, no one has an idea what the effects of the offset will be or even whether they will be positive."

The spill reduction plan stems from a conclusion by regional heads of several federal agencies that salmon recovery measures be implemented in the most cost-effective manner. That assessment came after deliberations last year on a proposal by the state of Montana to reduce spill and monitor the effects on fish. Federal agencies involved in the discussions include the Corps, NOAA, the Bonneville Power Administration, the Bureau of Reclamation and the U.S. Fish and Wildlife Service. The Northwest Power and Conservation Council and governors from its member states have also called for evaluations of less-costly salmon recovery measures.

The 2004 summer spill reduction plan calls for an elimination of spill in August at the Columbia's Dalles and Bonneville dams and at Ice Harbor (lower Snake) and John Day (Columbia) from Aug. 26 through Aug. 31. The injunction request says that represents a 35 percent reduction in summer spill volume from levels called for in the BiOp.

The summer spill plan developed by BPA and the Corps in cooperation with NOAA says that any resulting fish losses would be mitigated through "offset" actions elsewhere that improve survivals. The one offset that would specifically mitigate for the loss of Snake River fall chinook is the purchase of 100,000 acre feet of water in July from Idaho Power's Brownlee Dam that is intended to improve flows at a time when large numbers of the young fish are migrating toward the ocean.

BPA, which sells the power generated at the dams, and the Corps have estimated that the new plan would provide equal or better biological benefits overall that the BiOp operations, for listed and unlisted fish, while allowing the power marketing agency a net revenue gain of from $18 million to $28 million. The revenue gain would be produced because volumes of water would be channeled through turbines instead of spill gates.

NOAA and the Corps as well as other parties to the lawsuit have until Thursday to respond to the injunction request and supporting documents. The plaintiffs will then have an opportunity to respond. Judge Redden has scheduled a July 28 hearing on the issue and has promised to render a decision by July 30, just two days before spill gates are scheduled to be turned off at The Dalles and Bonneville.

"Remarkably, the agencies have decided to reduce summer spill even though implementation of the RPA in the 2000 FCRPS BiOp has been delayed in important respects and the survival rate for fall chinook juveniles, the life-stage most benefited by spill, is considerably lower than it was when NMFS issued the 2000 CRPS BiOp," according to the plaintiff's brief. NOAA documents indicate that "survival rates for these fish are declining significantly" in the first four years of the BiOp, according to the groups.

The joint filing by the Nez Perce, Warm Springs, Umatilla and Yakama tribes makes many of the same points about the value of spill, to both listed and non-listed migrants, and what it calls a failure of the federal agencies to properly analyze potential impacts.

"NOAA does not consider, much less analyze, the Corps and BPA decision to curtail spill against the Endangered Species Act's jeopardy standard and the 2000 FCRPS BiOp's jeopardy analysis, which is particularly critical given that the deficit situation existing for salmon resulting from the inadequate 2000 FCRPS BiOp and RPAs that the United States requested this Court to leave in place until a new FCRPS BiOp was developed, and the likelihood of the decision to curtail spill on exacerbating this situation," according to the tribal brief.

The tribal brief and Oregon's say the plan's reliance on the 100 KAF in Brownlee water represents a "double" counting of water that has long been provided through BiOp related agreements. The other suggested offsets do not adequately mitigate for impacts either, according to the tribes.

The tribal brief says the federal plan's impact analysis makes "unprecedented and over-extended use of the simulation modeling known as SIMPAS, contrary to the limitations that NMFS explicitly acknowledged in the 2000 FCRPS BiOp and contrary to the universal criticism of the state, tribal and federal fish managers, producing results that NMFS, the Corps, and BPA all admit contain 'considerable uncertainty.' "

The tribes say that, ESA concerns aside, there are "additional harms that will occur to the public interest from the decision to curtail spill, particularly with respect to the adverse impact on the federal government's trust responsibility to the Columbia River Treaty Tribes and their treaty-reserved rights that are either completely overlooked or inadequately analyzed in the federal agencies' decision."

The tribes' brief and accompanying declarations predict the spill reduction/offset package will have an adverse effect overall on both listed and non-listed fish.

"As a result, the impacts of curtailing summer spill affect fisheries and salmon stocks distributed over a broad geographic range, from salmon fisheries in rural Alaska communities to traditional tribal dipnet platform fisheries in Columbia River tributaries, like the Klickitat and Deschutes rivers," the tribal brief says.