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Feds Want Ninth Circuit to Overturn Redden's Spill Decision by Barry Espenson Columbia Basin Bulletin - August 6, 2004

Saying the U.S. District Court "abused its discretion" in halting a Columbia River hydrosystem spill reduction plan, federal attorneys have turned to the Ninth Circuit Court of Appeals in hopes of reviving a strategy they say will save electricity ratepayers $1 million per day while actually benefiting the fish the spill is intended to help.

The motion filed Wednesday asks the appellate court for a stay of a July 28 district court order that has prevented the U.S. Army Corps of Engineers from implementing a spill decision made last month in coordination with the Bonneville Power Administration and with the approval of NOAA Fisheries.

A stay would allow the spill plan's implementation during the course of an appeal.

The emergency motion says U.S. District Court Judge James A. Redden did not give the agencies, and NOAA Fisheries in particular, the technical deference to judge the spill reduction's biological effects and that the judge made his decision based on "inaccurate assumptions" and "mere speculation."

The plaintiffs in the case -- 19 fishing and conservation groups represented by Earthjustice -- have until the end of the business day Monday to file briefs with the Ninth Circuit in opposition to the stay. Federal attorneys representing NOAA Fisheries and the Corps would then have until 10 a.m. the next morning to respond to the plaintiff's filing. The Ninth Circuit would presumably make a decision within a few days. The "emergency" motion asked that the court act by Aug. 9.

A decision on the injunction is "critical because every day that it is in effect, BPA is needlessly prevented from generating additional electric power that would save ratepayers $1 million in electricity costs that day alone," according to the federal motion.

"These savings, once lost, cannot be recovered and furthermore, will impact BPA's ratemaking decisions for FY 2005," the motion says. The plan developed over the past several months called for a cessation of spill Aug. 1 at Bonneville and The Dalles dams on the Columbia and at John Day Dam (Columbia) and Ice Harbor (lower Snake River) Aug. 26.

A declaration from BPA CEO Steve Wright that accompanied the motion says that the spilled water at Bonneville and The Dalles represents $1 million in lost power generating opportunity per day. Spill at all four dams during the last five days in August, represents $1.5 million in foregone generation per day. The water surging through spill gates is generally accepted as the most benign route of passage for fish in most cases. But that means the water bypasses the powerhouse.

The federal motion notes that $5.6 million has already been invested in the plan -- $4 million paid to the Idaho Power Company to guarantee release of the water from Brownlee, $1.5 million to beef up the pikeminnow reward program and $100,000 for a Hanford Reach anti-stranding agreement.

The 2000 biological opinion on federal hydrosystem operations calls for spill at the dams through August to aid the in-river migration of salmon and steelhead listed under the Endangered Species Act. The summer spill program is designed principally to aid the threatened Snake River fall chinook stock. It is one of the actions the BiOp says is necessary to avoid jeopardizing the survival of the Snake River fish.

Redden is presiding in a lawsuit in which the fishing and conservation groups successfully challenged the 2000 BiOp. The Corps was added as a defendant this summer. The judge declared the BiOp's no-jeopardy conclusion illegal, saying it depended on non-federal actions that were not certain to occur and on uncompleted federal actions. The document remains in place while NOAA works to correct the deficiencies noted by Redden. A new BiOp is due by the end of November.

Redden's injunction order said the spill plan was arbitrary and capricious because it threatened to tilt the listed stock's status again toward jeopardy. He said the federal agencies acknowledge that survival of the listed fish will be lessened by the spill curtailment and that the plan's "offset" mitigation plan was inadequate. The release of 100,000 acre feet of water from the Snake River's Brownlee Dam in July to supplement flows for migrating young salmon was disallowed by Redden as a spill reduction offset because he said most of the flows were already presumed in NOAA's BiOp survival calculations.

The federal motion filed this week calls that conclusion erroneous, saying that "the 2000 BiOp's jeopardy analysis was premised on a hydro-regulation study that assumed no releases from Brownlee reservoir."(see BiOp excerpt below). It also defended the federal agencies' assessment that the deviation from the BiOp's prescription stays well within ESA guidelines and that it presents no danger to fish. The federal attorneys say the BiOp's adaptive management provisions allow revisions.

"… the (district) court's conclusory logic on this point would mean that every demonstration of an agency's failure to comply with an RP would give rise to an entitlement to preliminary injunctive relief. Under the ESA, however, compliance with an RPA is not mandatory, much less a de facto harm to the species warranting injunctive relief. Action agencies are free to deviate from RPAs if they so choose."

"NMFS is also clearly entitled to deference in its technical judgment as to the impacts and benefits of the spill decision on listed species, as this is an area within its expertise," the motion says.

The federal motion argues that impacts to the listed stock are negligible because 90 percent of the run is transported via barge past the dams. It says that Redden ignored evidence that this year's migration is earlier than most, with 100 percent past their first outmigration obstacle -- Lower Granite Dam -- by July 26. That means even fewer fish are in-river during August to be affected by the spill curtailment.

NOAA analysis indicates that the planned spill curtailment would reduce survival of the early-timed run by from 110 to 279 juveniles as compared to a survival gain of from 710 to 740 juveniles as a result of the July flow augmentation.

"The injunction prevents the Corps from implementing a spill decision that would confer substantial benefits on ratepayers in the Northwest region and, after extensive analysis, was determined by NMFS to be equally if not more protective of the threatened Snake River Fall (SRF) chinook salmon than the spill operations presumed under the Reasonable and Prudent Alternative (RPA) contained in the 2000 Biological Opinion (2000 BiOp) for the Federal Columbia River Power System (FCRPS)," according to the federal motion.

The request for a stay of the injunction says the potential hardships to the public outweigh potential harm to the fish.

Wright's declaration noted that a financial package developed on June 25 "indicated that if BPA were to realize an improvement of its modified net revenues of $88 million through increases in revenues or cost savings this fiscal year, it could allow me to use my discretion to reduce rates by up to 7.7 percent. The net gain from the proposed spill reduction would represent 20 to 32 percent of the $88 million."

New rates could go into effect Oct. 1. The motion pointed to the fact that the agency's wholesale power rates are 46 percent higher than they were three years ago (see The Regional Dialogue Looks Forward, BPA Journal, August 2004. BPA markets the power generated in the federal hydrosystem. An important part of its revenue stream is that gained through the sale of surplus generation during the summer.

The plaintiffs in the lawsuit responded angrily to the attempt to resurrect the spill curtailment plan.

"The agency's decision to fight this ruling is a slap in the face to fishing communities, native American tribes, and conservationists as well as everyone else that has worked to restore wild salmon in the Columbia and Snake Rivers," said Todd True, Earthjustice attorney. "More than that, it reflects a determination to put a small amount of money--perhaps a dime a month off residential electric bills--ahead of restoring sustainable wild salmon runs."

"Of all the millions of dollars spent trying to rescue vanishing salmon runs in these rivers, one of the most effective technique has been this release of water at just the right time--which is now," True said. "To withhold the water from these fish is bad resource management, bad economics, and bad environmental policy. It is also illegal."

Excerpt from 2000 Biological Opinion
Action 32: The Action Agencies shall acquire water for instream use from BOR’s Upper Snake River basin projects and Idaho Power Company’s Hells Canyon Complex during the spring and summer flow augmentation periods to improve the likelihood of achieving spring and summer flow objectives at Lower Granite Dam.