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Feds Appeal Over Summer Spill, say Judge's Assumptions 'Inaccurate' by Bill Rudolph NW Fishletter, August 13, 2004

Citing new evidence that a reduced spill regime would likely kill only about 100 to 300 ESA-listed fall chinook smolts, federal attorneys fired off a motion to the Ninth Circuit Court last week in a last-ditch attempt to save their summer spill regime. After trading last-minute legal blows earlier this week, government and environmental lawyers settled down for a quick decision. But by yesterday afternoon, BPA spokesman Ed Mosey seemed resigned to wait a little longer. "Our lawyers don't think a decision will be announced till next week," he told NW Fishletter.

The one-year proposal to cut August spill at four federal dams on the Columbia River was blocked July 28 in Oregon District Court when federal judge James Redden granted a temporary injunction filed by environmental and fishing groups.

But the August 4 filing by the government took issue with nearly every point in Redden's decision. "The court's statements are based on inaccurate assumptions and do not support its conclusion that the requisite showing of harm had been made," said the feds' motion, which also noted the judge had already rejected their argument that he lacked jurisdiction in the case because plaintiffs had failed to comply with the ESA's 60-day notice to sue requirement. Redden had ruled that even if feds were right on that point, the plaintiffs still had the right to go to his court under the aegis of another federal statute, the Administrative Procedures Act.

The appeal points out that federal scientists predicted a net survival benefit for fish under every scenario modeled to evaluate the action designed offset the spill deaths, 100 kaf of augmented flows in the lower Snake River from Idaho's Brownlee Reservoir.

The agency estimated up to 930 smolts or .25 percent of the run could die from the new spill regime in late migration years, but only about one-third that number would die if smolts migrated early, as the case now seems to be.

Fall chinook expert and USFWS scientist Billy Connor said in the appeal that the run was nearly 100 percent complete. Later migrating fall chinook like the Clearwater River stock mentioned by plaintiffs as a group that would suffer most from the proposal actually pass downstream in September or the following April, Connor said.

Arguing against the stay, Earthjustice attorneys said the Brownlee proposal "was criticized by virtually every state, tribal, and federal agency in the region" and that the feds' argument that their fish survival model was employed because it was the best they had, didn't mean the federal decision was rational or entitled them to "unquestioning deference" because earlier precedent has established that there is no "rational relationship between the model chosen and the situation to which it is applied."

The feds also said the augmented flows from Brownlee would likely add another 700 smolts in an early migration year, a boost that averaged out to only 2.3 kcfs for three weeks with overall flows in the 35 kcfs range.

But the augmented flow itself became a major bone of contention. The judge agreed with plaintiffs' arguments that the water was not new nor added to previous requirements already called for in the 2000 BiOp

When is New, New?

However, the appeal argued that the water is new, since the BiOp's call for more water from Idaho Power's Hells Canyon Complex can only be completed after an ESA consultation with FERC and the Idaho Power Commission.

The agreement with Idaho Power called for the water to be released over a three-week period, according to a declaration by Greg Delwiche, BPA vice president for generation supply. Plaintiffs had argued that the 100 kaf was released early in July, not uniformly throughout the three-week period as modeled by federal scientists to estimate survival benefits.

In his ruling, Redden cited the early water release as one reason not to trust the feds' conclusions about their predicted benefit to listed fish from the Brownlee offset, one they had claimed compensated for any losses from reduced spill.

But Delwiche said the slower water releases actually did occur, though more water was released as well to satisfy Idaho Power's "own purposes." He also said that NOAA Fisheries' modeling effort, which used average river flows, was appropriate because real world variations were already "anticipated" because the regression model was derived from "real river fish survival," which reflected both diurnal and day-to day flow fluctuations in the river.

In last-minute responses, plaintiffs' attorneys targeted the latest remarks by Connor and Delwiche, arguing that NOAA Fisheries had earlier presented evidence that suggested 39 percent of the Clearwater stock would migrate in July if the run was early. They said that the feds can't revise their survival analysis with this new information as a "post-hoc rationale for an arbitrary decision," and called for the declarations to be stricken from the record because the evidence presented in them may not have been available for review at the district court level.

They also attacked Delwiche's support for Connor's modeling assumptions because "he apparently possesses no special qualifications to testify about the biological impacts to salmon...."

But the feds answered by saying that the portions of his declaration regarding the timing of the Brownlee releases and BPA's agreement with Idaho Power are both within his area of expertise. They characterized the latest declarations as "updated information based upon findings made since the district court's decision."

Double Benefits Alleged

Plaintiffs included affidavits from several fish managers that said NOAA Fisheries used fish survival estimates from 1995 to 1999 in their jeopardy analysis for the 2000 BiOp, a time when water releases from Brownlee reservoir were substantial, thereby claiming that the agency's analysis has effectively "double-counted" the benefits from the 100 kaf flow augmentation that the fish agency OK'd as an offset to the reduced spill plan.

In their latest reply brief, federal attorneys conceded in a footnote that an earlier, somewhat contradictory statement by appellants was "overly broad." They said a full Brownlee Reservoir was assumed when NMFS staffers were determining how often BiOp flow targets would be met, but said that is a separate issue from whether NMFS was counting on future releases from Brownlee Reservoir.

The feds also argued that plaintiffs' claims that the survival models used by government scientists are invalid--"even though these models represent the best available science to evaluate the impacts and benefits of the decision"--would "paralyze" agencies from being able to adjust BiOp operations "because there will never be perfect information, nor predictive models, with no margin of uncertainty."

The feds' response also took issue with plaintiffs' assertions that juvenile fall chinook survival rates were higher in the late 1990s, before the 2000 BiOp was issued. They pointed out that the low-flow year of 2001 was the only period since then where the fish failed to exceed the 1994-1999 average survival rate, and that adult survival rates for 2001 and 2002 exceeded both the 1994-1999 average and the 2010 performance standard.

With adult survival rates for fall chinook this high, the feds also countered plaintiffs' argument that the listed fish in question were at an imminent risk of extinction. They pointed to an earlier declaration by NOAA Fisheries assistant regional administrator Brian Brown, who said that the current condition of Snake River fall chinook "is better than it was when the 2000 BiOp was adopted." Hence, they say improved condition of the ESA-listed stock has given them flexibility to modify the spill regime for this year, and demonstrates that they are not acting "arbitrarily or capriciously" as Judge Redden had ruled.

After the appeal was filed, Earthjustice attorney Todd True, who represented the groups challenging the new spill regime, called the action a slap in the face to fishing communities, tribes, and conservationists.

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

True said the appeal reflected "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."

Public Interest Argued

But the economic issue was also grounds for appeal, with federal attorneys claiming that Judge Redden failed to give proper weight to the public interest. An attached declaration by BPA head Steve Wright said the one million dollars a day or more that would have been saved by implementing the new regime, a figure that represented 20 to 32 percent of a proposed $88 million change to net revenues that could reduce rates by up to 7.7 percent.

Wright said BPA has already spent over $5.6 million to pay for offsets to improve fish survival. Idaho Power was paid $4 million for the 100 kaf to aid the listed stock of fall chinook and another $1.5 million was spent boosting the pikeminnow predation program, which NOAA Fisheries decided did not meet criteria as a new action, since it was already called for in the 2000 BiOp.

Another $100,000 funded a new agreement with Grant PUD to further reduce flow fluctuations in the Hanford Reach to aid juvenile fall chinook in that part of the river, a stock not listed for protection under the ESA.

BPA customers filed amici briefs with the appeal, saying that Judge Redden has abused his discretion by granting the injunction. They said benefits to fish, if any, were "very tenuous" and did not counterbalance harm to the Northwest.

Their filing included comments from representatives of Northwest industries, who told the court how much their companies would save from the reduced spill regime. Noting that the Northwest economy was still suffering some of the worst conditions in the nation, Alcoa expected to save $1 million, Georgia-Pacific about $250,000, and Weyerhaeuser said it would save $720,000 from the change in summer spill.

Portland attorney James Buchal, representing Northwest irrigator groups, also filed an appeal in the Ninth Circuit to stay the injunction. His motion claimed that Redden "improperly seized from respondent the authority to fine-tune salmon management programs of enormous cost, complexity and burden," and that the feds' decision to trim a $38 million program " to produce a handful of "endangered" adult Snake River fall chinook salmon, if indeed the tiny theoretical changes in survival have any measurable effect in the real world was well within respondents' discretion conferred by law." Buchal also called for Judge Redden to be disqualified because of bias on the side of plaintiffs.