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Court Ruling Favors Fish Over More Electricity from River Dams by Hal Bernton, Seattle Times staff reporter The Seattle Times, July 29, 2004

PORTLAND -- A U.S. District Court judge yesterday barred the federal government from a first-ever attempt to reduce the summer spill that improves passage of young salmon past dams on the Columbia and Snake rivers.

The government had wanted to push more water through turbines — rather than over spillways — during strong summer power markets, a move that could have raised up to $28 million in additional revenue for the Bonneville Power Administration, which markets wholesale power throughout the Northwest.

Young salmon migrate from freshwater spawning grounds out to ocean feeding grounds. Biologists have said flushing the salmon over spillways rather than through turbines can improve their survival rates.

U.S. District Court Judge James Redden's ruling was a strong rebuke to the National Marine Fisheries Service, which had concluded that spill could be reduced beginning Aug. 1 without harming the recovery prospects for an endangered fall run of Snake River chinook salmon.

And the ruling was a significant judicial affirmation of the power of the Endangered Species Act, which has propelled a multibillion-dollar effort to restore wild salmon runs around the region.

"I don't want anyone to walk out of here thinking I ignored the public interest in terms of ratepayer dollars," Redden said after announcing his ruling to a courtroom packed with attorneys and representatives of federal agencies, Northwest Indian tribes and conservation groups. "It's a difficult case, but my job is to consider the Endangered Species Act and the fate of juvenile salmon."

The National Marine Fisheries Service on July 1 signed off on a BPA plan to forgo the summer spill in favor of less costly measures to help the salmon. The result would have been an estimated five to 40 fewer adult endangered salmon, which since 1989 have varied from a low of 78 returning adult spawners to more than 1,000 last year. It also would mean up to 12,000 fewer fish from runs not under federal protection, according to a federal analysis.

But a coalition of tribes, conservation groups, sport fishermen and the state of Oregon challenged the federal analysis, saying that alternate measures would not offer the same level of protection to salmon. Redden agreed, calling the plan "arbitrary and capricious." And, he said that the benefits of the spill to the long-term environmental health of the region outweighed the short-term economic benefits of increased hydroelectricity production this summer.

The Columbia and Snake dams are operated by the Army Corps of Engineers. The dams have been a significant cause of the decline of Northwest wild salmon, which are now outnumbered by the millions of hatchery fish that make their way down rivers each year in Washington, Oregon and Idaho. Despite an upsurge in numbers in recent years, the wild fish remain far below historical peaks.

Spilling water is costly, sacrificing power generation at a time when the BPA could sell the electricity to California to reduce debt and at least put a dent in the need for Northwest rate increases.

The BPA provides wholesale power to 130 Northwest public utilities, including Seattle City Light, Tacoma Power and the Snohomish County Public Utility District. In October, the BPA will announce its next wholesale rate move, which could range anywhere from a 7 percent decrease to a 7 percent rate increase, according to Ed Mosley, an agency spokesman.

The plan struck down by Redden would have reduced spill next month at the Ice Harbor and John Day dams on the Snake River, and the Bonneville and The Dalles dams on the Columbia.

Conservationists called the ruling an important, historic victory.

"I think the people in this region understand that wild salmon in their rivers are more valuable than a nickel or a dime on their electric bills," said Todd True, attorney for Earthjustice, one of the environmental groups that filed the lawsuit.

Kathryn Brigham, spokeswoman for the Confederated Tribes of the Umatilla Reservation, called the ruling a victory for both ratepayers and tribes. "All of us have to accept responsibility, and we need to figure out how to address it cooperatively," Brigham said of salmon-recovery efforts.