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Judge Halts Plan to Reduce Dam Spills, Aiding Salmon by Associated Press Seattle Post-Intelligencer - July 29, 2004

PORTLAND -- Salmon in the Columbia and Snake rivers will get a boost on their swim to the ocean next month, thanks to a federal judge's ruling yesterday.

U.S. District Judge James Redden issued a preliminary injunction to stop a Bush administration plan that would have reduced the amount of water spilled over four federal dams, beginning Sunday.

An alliance of environmental, fishing and tribal groups that had sued the U.S. Army Corps of Engineers over the plan cheered the ruling.

"It's an historic decision," said Jan Hasselman, an attorney for the National Wildlife Federation, the lead plaintiff in the case.

"This is the first time in all the years of litigating on the Snake and Columbia that a judge has actually stepped in and prevented the agencies from taking a step that was seriously harmful for endangered salmon," he said. "We're very excited."

Redden held that the government's own studies clearly showed that Snake River fall chinook were in jeopardy unless the Bonneville Power Administration allowed more water over the dams in the summer. The spill helps juvenile fish migrate to the ocean.

Without the summer release, salmon face a lethal gantlet -- swimming through power-producing turbines. And while there have been strong returns of adult fish in recent years, there has not been a lot of production of juvenile salmon, Northwest tribal officials said.

The BPA had planned to reduce spills at the dams, including Bonneville Dam -- the last barrier to the seasonal journey of juvenile salmon swimming down the Columbia to the Pacific Ocean. The Army Corps of Engineers had approved the plan.

The federal power-marketing agency said it was trying to minimize the disruption to the fish while maintaining hydroelectric production for the West.

Opponents of the spill-reduction plan countered that the potential damage to salmon-recovery efforts outweighed the short-term economic benefits from enhanced power production.

"It tells the industry schemers and BPA accountants that the best pieces of salmon recovery are simply not for sale," said Charles Hudson, spokesman for the Columbia River Inter-Tribal Fish Commission.

Todd True, another National Wildlife Federation attorney, told Redden that the government has exaggerated the value of measures intended to offset the spill reduction, such as releasing more water from the Brownlee Reservoir on the portion of the Snake River that forms the Oregon-Idaho border.

True said many of the assumptions made by the BPA, the National Oceanic and Atmospheric Administration and the Army Corps of Engineers "don't match reality."

In court yesterday, True reminded Redden that the judge had previously ruled that the last government studies in 2000 supporting the Northwest salmon-recovery program, known collectively as a biological opinion, were flawed and needed revision.

Fred Disheroon, a Justice Department attorney representing the federal agencies, argued that courts have no business interfering in routine operations, such as modifying summer spill plans.

The judicial branch, Disheroon maintained, can intervene in federal agency operations only when major policy decisions or legal issues are involved, or there is the risk of serious harm to the public interest.

"I characterize this as an operational decision," Disheroon said of the spill plan. "I think that's all it is. (Opponents) are simply trying to second-guess or substitute their judgment for the agencies."

The BPA typically spills water over dams during spring and summer to help young salmon bypass power turbines. But the agency says it can reduce spills enough to save $18 million to $28 million in Western power production without seriously affecting salmon runs.

Oregon Gov. Ted Kulongoski also opposed the reduced-spill plan, but the governors of the other three Northwest states served directly by Bonneville -- Washington, Idaho and Montana -- all support the summer spill plan, as did some utility, transportation, agriculture and port groups.

"Our belief is that you could provide the same fish benefits at a lot lower cost using other measures," said Glenn Vanselow, executive director of the Pacific Northwest Waterways Association, which represents economic development groups. "We are disappointed in the judge's ruling."