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Judge Orders Heavy Spills for Salmon by Joe Rojas-Burke The Oregonian, June 11, 2005

The ruling on Columbia Basin fish faults policies
based "more in cynicism than in sincerity"

Calling the U.S. government's effort to protect Columbia Basin salmon an exercise "more in cynicism than in sincerity," a U.S. district judge in Portland on Friday ordered the government to comply with salmon advocates' request for heavy releases of river water over four dams this summer.

The costs of the court-ordered dam operations, in the form of foregone revenues from power generation, could run as high as $67 million, federal officials said. Water spilled over dams to help juvenile salmon migrate to sea bypasses turbines and so can't be used to generate electricity. Federal agencies had planned to collect as many fish as possible and transport them downriver by truck and barge.

But the sharp ruling on summer "spill" is the first of what could be more pronounced changes in dam operations. It was issued U.S. District Judge James Redden and derives from his court's sweeping rejection last month of the Bush administration's hydropower policy. The federal dams provide relatively low-cost electricity, irrigation water, and barge transportation across Oregon, Washington and Idaho.

The first Snake River salmon landed on the Endangered Species List in 1991. Federal officials have since struggled to come up with strategies to allow the big federal dams to operate while killing and injuring federally protected fish, now comprising 13 populations listed or proposed for listing.

Redden had deemed the latest attempt "contrary to law" because he said it systematically underestimated harm to salmon. This, he wrote, had the effect of "substantially lowering" the bar required for offsetting the effects on migrating salmon.

In his packed Portland courtroom Friday, Redden called the government's 2004 plan an exercise "more in cynicism than in sincerity." He said the salmon most affected by summer dam operations -- threatened Snake River fall chinook -- remain in serious trouble. Lamenting the polarized climate made "sick" by the warring interests of power companies, farmers and federal dam operators versus fishing groups, Native American tribes and conservation groups, the judge called for a fresh start.

"You're the ones . . . "

"I want you to take advantage of this moment to get together and start talking," he said. "It's not an insoluble problem . . . . You've got an enormous responsibility here. You're the ones who can put it together."

Redden ordered the government to begin large-scale spilling of water at three Snake River dams on June 20, and on July 1 at another dam on the Columbia. The judge denied a request by conservation groups and tribes to increase the rate of flow out of the Snake River and the upper Columbia that would have required draining substantial amounts of water from upriver reservoirs.

Federal officials Friday said they would try to resolve differences with conservation groups, tribes and states. Oregon and Washington, in particular, registered objections to the original federal plan for dam operations, but neither joined the lawsuit seeking increased spill.

"We will do our best to see if we can get to common ground," said Bob Lohn, regional administrator for the National Marine Fisheries Service, the federal agency responsible for salmon.

"God Squad" possible

But Lohn and the lead federal attorney, Fred Disheroon, said it might be impossible, technically and legally, to come up with a program that does all the court has asked. If so, they said the government could be forced to put the matter before an endangered species committee, or "God Squad," a rarely exercised body which has the power to decide if federal projects are more important than endangered species.

Lohn indicated the government is likely to appeal Friday's court order. He said spilling water over dams could make things worse for salmon, with "enormous" cost to the region. Lohn disputed the judge's characterization of the federal effort as cynical. "We tried very hard to write a biological opinion that scrupulously followed the law and used the best available science."

Power and industry groups denounced the judge's decision. They maintain that transporting young salmon by barge and truck makes the most sense during a low-water year, rather than leaving fish exposed to overheated water, and predatory fish and birds.

"We're frustrated," said Kevin Banister, a spokesman for PNGC Power, which represents nonprofit electric generating cooperatives. "We're certainly not convinced that the injunction is good for fish. We know it's not good for the economy."

Todd True, the attorney representing the National Wildlife Federation and other conservation groups, asserted that the weight of scientific evidence supports the use of spill to help salmon.

"The reason there's not more spill is because it costs" the Bonneville Power Administration money, True said.

Costs of releases

How the $67 million price tag will affect electricity producers and consumers is not yet clear. The cost is but a fraction of the BPA's annual revenues of $3 billion. Conservation groups estimated the cost would amount to less than 20 cents a month for residential ratepayers in Portland.

Michael Garrity of American Rivers said the court's recent rulings should make federal and state officials more open to consider breaching the four dams on the lower Snake River, where some salmon and steelhead runs have dwindled despite efforts to minimize migration barriers.

"Everything should be on the table," Garrity said. "Let's use this opportunity to look at what is required to actually get to recovery."

Oregon Gov. Ted Kulongoski said he and the governors of Idaho, Montana and Washington are focusing on salmon-saving strategies that preserve the dams. David Leith, an assistant attorney general, said, "The governor is very hopeful that conditions are now ripe to break new ground and find some consensus measures that will benefit fish." Leith declined to specify what Oregon is seeking.