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Commentaries and editorials

Court Order Requires Earlier Spill for Salmon
in 2018; Orders Design Study, Monitoring

by Staff
Columbia Basin Bulletin, April 7, 2017

Little Goose Dam, one of the supposed culprits contributing to the decline of Steelhead and Salmon in the Snake River. Under court order, the operators of eight federal dams on the lower Snake and lower Columbia rivers will begin to spill water for fish earlier next year, beginning April 3, to possibly improve survival rates for juvenile salmon and steelhead through the hydroelectric system.

Conservation groups, the state of Oregon and the Nez Perce Tribe asked for the injunctive relief that resulted in the court-ordered spill in a January 9 filing in U.S. District Court of Oregon. The request enjoined the same case decided in May 2016 in which Judge Michael H. Simon rejected the 2014 biological opinion for salmon and steelhead for the Columbia River hydropower system and ordered a new BiOp be completed by the end of 2017.

Simon released his spill opinion and order March 27, which also requires the U.S. Army Corps of Engineers to operate bypass and PIT-tag juvenile detection systems at the dams beginning March 1, 2018 (that now occurs in mid-March to early April) and for the Corps to provide timely reviews of future capital investments valued at over $1 million at the dams in order to avoid a "significant risk of bias in the NEPA process," according to the order. However, he refused to stop any spending necessary for the safe operation of dams.

The conservation groups asked the court to order the dam operating agencies to provide the maximum allowable spring spill to a total dissolved gas limit set by the U.S. Environmental Protection Agency at the four lower Snake River dams and the four lower Columbia River mainstem dams. Spill will begin one to two weeks earlier than is currently required.

The court-ordered spill will continue until NOAA Fisheries completes its next biological opinion of the federal Columbia River power system, which is to be done by court order December 31, 2018.

Simon also ordered the Corps and NOAA Fisheries, two defendants in the court case, to design a study this year that could be used in 2018 when earlier spill is initiated that would determine if the additional spill provides benefits for juvenile salmon passage. In addition, he ordered the Corps to design spill patterns at the dams to ensure dam and transportation safety.

Although Simon only provided partial injunctive relief to the plaintiffs, the conservation groups focused on the additional spill as a win in the case.

"While we recognize that this relief will not eliminate the harm to salmon and steelhead from dam operations in the long run, we are encouraged that increased spring spill will be granted to reduce irreparable harm to juvenile salmon and steelhead," said Todd True, Earthjustice attorney.

In addition to the state of Oregon and Nez Perce Tribe, Earthjustice is representing the National Wildlife Federation, Pacific Coast Federation of Fisheries Associations, Northwest Sportfishing Industry Association, Idaho Rivers United, and the Northwest Energy Coalition, among other conservation and fishing associations.

The groups specifically had asked for 24-hour spring spill to the gas cap limit of 120 percent total dissolved gas to begin April 3 this year and to be maintained through June 20 at Ice Harbor, Lower Monumental, Little Goose and Lower Granite dams on the Snake River, and for spill to begin April 10 and end June 15 at Bonneville, The Dalles, John Day and McNary dams.

Simon in his opening remarks at the March 9 oral argument hearing said he was inclined to allow the spill, which would have begun this week, April 3, but he came to understand before the hearing had ended that additional spill should not be considered without a test to determine its value and designing the test would require more time, at least until 2018.

(See CBB, March 10, 2017, "Judge Considering Ordering More Spill For Fish In 2018 With Study Design To Test Benefits") .

"This is about much more than saving fish, said Liz Hamilton, executive director of the Northwest Sportfishing Industry Association. "Until the federal agencies are willing to comply with the law, we are glad short-term measures will be in place to give migrating fish the fighting chance they need. We owe it to ourselves and future generations to get this right."

"Family fishing businesses like mine have struggled for years due to low salmon populations," said Amy Grondin, a Washington Commercial salmon fisher. "We can’t wait for years for the federal agencies to get this right."

At one point in his opinion, Simon said that "All parties agree that previously-ordered spill has generated survival benefits and has been good for salmon survival" and that the Independent Scientific Advisory Board "concluded that additional spill had merit and is worth testing."

(The Columbia Snake River Irrigators Association objected March 31 to the characterization that all parties agree, saying in a motion that spill was the problem in 2015 during an unusually warm year and that transportation should have started earlier that year. Simon released an amended Opinion and Order the same day that removed the reference to "All parties….")

But Simon was surprised that "Despite these widespread calls for testing increased spill, the Federal Defendants do not appear to have crafted any such experiment."

He noted that much of the opposition to increased spill was not about a concern that the additional spill would harm salmon, but that the opposition had more to do with rushing the process. He concluded in his Opinion that there is "sufficient scientific support for a limited injunction requiring increased spill to benefit the listed species," and so ordered spill to begin in 2018 instead of this year.

He also recognized the importance of early PIT-tag monitoring, especially "in light of the tails of the run for diversity and species adaptation" and ordered PIT tag monitoring beginning March 1, 2018.

The plaintiffs had also asked for an injunction to halt the Corps from spending more money on the dams, pointing out two planned projects costing about $37 million at Ice Harbor Dam, but also asking to halt any new capital projects.

Overall, the groups asked to stop 11 capital projects valued at $110 million at the four lower Snake River dams until the three federal agencies -- the Corps, Bonneville Power Administration and the Bureau of Reclamation -- complete a National Environmental Policy Act review that could evaluate removing the dams as an alternative. The Corps operates those dams.

Among the issues of his rejection of the BiOp last May, Simon said that NOAA and federal dam operating agencies had not considered all options available to avoid jeopardy for the 13 species of salmon and steelhead listed under the Endangered Species Act.

One option not considered was breaching the four lower Snake River dams.

Also in that decision, Simon ordered the federal agencies to conduct a five-year NEPA review that includes an analysis of dam removal as an alternative. A new BiOp is to be completed at the end of 2018 and another once the NEPA review is complete in 2021. Federal agencies have completed the first Scoping step of the NEPA process, receiving more than 250,000 comments.

At issue is whether the Corps could evaluate breaching the dams without being biased by the amount of money spent on the projects while the NEPA review is in process. That financial commitment, according to a Ninth circuit court opinion "can constitute an irreversible and irretrievable commitment of resources" for purposes of NEPA," Simon wrote.

"In weighing the environmental benefits of removing, breaching, or bypassing the dams, the costs of such actions also likely will be weighed, as well as the costs of operating the dams," he continued. He found that "spending hundreds, tens, or even millions of dollars on the four Lower Snake River Dams during the NEPA review period is likely to cause irreparable harm by creating a significant risk of bias in the NEPA process."

Yet, Simon did not stop all capital projects. Some, he found, aided fish, while some were for safety. The "balance of harms and public interest weighs against the specific injunction being requested," he wrote.

Instead, he required the federal defendants to disclose enough information about future projects to plaintiffs. If the plaintiffs then believe a project is not needed, they can return to the court, he said. He gave the plaintiffs and defendants 14 days to come up with a process on how to do this.

Finally, Simon said the "court intends to hold periodic status conferences regarding the increased spill that must take place in 2018. Within 28 days, the parties shall confer and file with the Court their joint or separate recommendations for a schedule of periodic status conferences.


Staff
Court Order Requires Earlier Spill for Salmon in 2018; Orders Design Study, Monitoring
Columbia Basin Bulletin, April 7, 2017

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