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BIOP'S Upper Snake Approach Leaves Flow Uncertain by Mike O'Bryant Columbia Basin Bulletin - December 22, 2000

If it looks like something is missing from the federal Columbia River power system 2000 biological opinion released this week by the National Marine Fisheries Service, there is: 11 upper Snake River projects owned and operated by the Bureau of Reclamation.

The change in scope leaves out of the BiOp BOR's hydro projects upstream of Idaho Power's Hells Canyon Dam and one dam on the Clearwater River, at least until spring.

Much of the 427,000 acre feet of water used for spring and summer flow augmentation for salmon and steelhead originate at these BOR facilities. While the BiOp originally included 30 BOR and U.S. Army Corps of Engineers projects, it now includes just 19, most of which are in the Columbia River. Only two -- Grand Coulee Dam on the Columbia River and Hungry Horse Dam on the Flathead River -- belong to BOR.

Their removal is due to a mediation process associated with the longstanding Snake River water rights adjudication, a court proceeding that began in 1992 and has to do with the allocation of water resources in Idaho. Until the mediation is complete and Idaho releases the water, augmented flow will not be available from those projects.

"As the mediation discussions progressed, we found we couldn't clearly define our operations in the upper Snake River," said Ken Pedde, deputy regional director of BOR. "Even though we were in consultation with NMFS, we found we couldn't offer them any specific actions to consult on."

He added that BOR provided NMFS with a biological assessment of projects upstream of Hells Canyon Dam in 1999 and completed consultations with NMFS in 1999 to 2000.

The Snake River adjudication has been in progress for nearly ten years and the mediation for almost two years. Yet, NMFS, BOR and the Nez Perce tribes are optimistic it can be wrapped-up in time to add the upper Snake River projects back into the BiOp and have water from those projects available for spring flow augmentation next year.

"We are not separating these projects out. We will address them in a supplemental BiOp," said Jim Ruff, of NMFS. "We expect to get a refined action plan from the Bureau and wrap it up before irrigation water is needed for the 2001 fish migration season." He added that most of the flow augmentation comes out of Idaho during the summer, not in the spring.

Not everyone is as optimistic. Bob Heinith, hydro coordinator for the Columbia River Inter-Tribal Fish Commission, looks at the history and complexity of the adjudication and mediation and wonders how it would be possible to conclude the case so soon.

"For whatever reason, NMFS thinks that it can wrap it up by spring, but that seems pretty ambitious to me given the complexity of the case," Heinith said.

Perhaps being less optimistic is closer to reality. According to Pedde, the state of Idaho has authorized the 427 kaf for about 10 years, but that authorization expires in 2000 and the state Legislature must reauthorize the water, something he says they will do once the mediation is complete.

"I expect they will renew it as a result of the settlement," Pedde said. "However, if the settlement doesn't get done, then we're in a hole."

The mediation is over a claim originally made by the Nez Perce Tribes in 1993 that asked the court to resolve three issues related to 1855 and 1863 treaties. They are:

• set in-stream flows in the Salmon and Clearwater river basins, as well as areas near the confluence of the Snake River and Clearwater River. This claim is based on the tribe's 1855 treaty with the federal government over its right to fish both on the reservation and off in "usual and accustomed fishing places," according to Heidi Gudgell, attorney for the Nez Perce Tribe Office of Legal Council. "We contend that having water in-stream is required to maintain habitat and fish runs," she said.

• use of water on the reservation;

• access to springs and fountains, some on and some off the reservation.

As Heinith said, much of the mediation is complex. According to Gudgell, the Nez Perce wants to set 1,100 in-stream flow standards in the Clearwater and Salmon river basins, or "anyplace that we consider to have been a usual and accustomed fishing area within the state of Idaho." Those are broken down into 12 monthly segments and are set based on the priority species for that month. "Some months are for spawning fish, some months are for flushing smolts," she said.

No one would talk directly about the mediation, both because of a court order and because the talks are in "a delicate balance right now," Gudgell said. However, she and Pedde said there were many parties involved, including the tribes, federal and state agencies, Idaho Power, upper Snake River irrigation interests and industrial interests, such as Potlatch and Simplot.

Diana Cross, spokeswoman for BOR, said the projects involved include, in some cases, more than one dam that can operate as a system. Some projects may also include wells or off-stream reservoirs (i.e. water is conveyed to a site by a canal). "The reason this is important is, legally, it is the operation of the project that we consult on," she said. The projects include:

Lewiston Orchards (Clearwater River)
Boise (Boise and Payette rivers)
Minidoka (Snake River)
Palisades (Snake River)
Michaud Flats (Snake River)
Mann Creek (on Mann Creek near Weiser)
Little Wood River
Owyhee (Owyhee River)
Burnt River (Burnt River)
Baker (Powder River)
Vale (Malheur River)

Link information:
BOR: www.pn.usbr.gov
Northwest Region National Marine Fisheries Service: www.nwr.noaa.gov
CRITFC: www.critfc.org