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BiOp Judge Kills Spill Plan, says Added Water for Fish Not New by Bill Rudolph NW Fishletter, August 13, 2004

A federal judge ruled July 28 in Portland that a plan by federal agencies to reduce summer spill at federal dams falls short of ESA obligations to protect Snake River fall chinook. Judge James Redden granted an injunction to maintain status quo operations, siding with environmental and fishing groups who brought the action last month after earlier success at bringing down the old BiOp in Redden's court a year ago.

The judge agreed with the groups who took issue with NOAA Fisheries' decision to approve an additional 100 kaf of flow from Idaho's Brownlee Reservoir to make up for the losses. The feds had estimated mortality to the ESA-listed stock from the reduced spill program in the 100 to 1,000-smolt range. The feds said the 100 kaf would improve juvenile survival by one percent.

Redden's ruling wasn't unexpected by long-time court watchers familiar with his record. They say that since his days as Oregon's attorney general, Redden has shown strongly pro-environmental views. Before oral arguments began last Wednesday, Redden even admitted to all parties that he was inclined to rule for the plaintiffs.

The water being added to improve smolt survival wasn't really new, he said, citing plaintiffs' arguments that Idaho Power has released Brownlee water during July in most recent years, anyway.

"If we are working at a deficit, we should not be cutting back a valuable tool [spill]," he said.

But utilities stung by the decision called the move a missed opportunity to add common sense to fish recovery efforts. "The judge ordered continued waste," said consultant Jim Litchfield, who represents the state of Montana at federal decision-making forums that govern river operations. "The customers won't stand for it."

The reduced spill regime would have saved BPA customers up to $28 million this year, according to agency estimates, a reduction that utilities considered a step in the right direction. But with the injunction, the move toward cost-effectiveness that began as a recommendation from the Northwest Power and Conservation Council seems stymied for now.

"The system is broken," said Pat Reiten, president of PNGC Power, a member of a coalition of BPA customers who supported the change in operations.

But environmental and fishing groups, led by Earthjustice attorney Todd True, hailed the ruling as a significant step for the future of wild salmon. "For the first time," said True in a July 28 press release, "a federal court has held the federal agencies that operate Columbia River dams accountable to the promises they made to restore salmon to these rivers. We have a long way to go, but this could be a turning point for the few wild salmon we have left."

During oral arguments, True said that Idaho Power had released water in July from Brownlee in eight out of the past 11 years. He said the 100 kaf contracted for this July was "only a small down payment on flow measures that haven't been met."

True also argued that the hydro BiOp still in place calls for more water from Brownlee as one action to improve fish survival, even though no agreement has been formalized.

But federal agencies called the added flow a new action, and to make sure it would happen, the Bonneville Power Administration paid Idaho Power $4 million early last month.

However, after oral arguments were heard in Redden's court on July 28, he ruled that the 100 kaf from Brownlee "was not new or added water," so that federal claims of a net improvement were unsupportable. Redden also agreed with plaintiffs who charged that the feds' model, which averaged out the added flow release to a steady 2.3 kcfs for three weeks, did not reflect the real fluctuations in flow involved in the action. Hence, he ruled the decision of the agencies was "arbitrary and capricious."

True had called the feds' "even flow" assumption a critical one. Further, he cited a declaration from independent consultant Dr. Gretchen Oosterhout, who said that juvenile survival through the hydro system had declined from the mid-1990s. [In her statement, Oosterhout had averaged post-1999 fall chinook survival data to make this point. But her analysis included the extremely low in-river survival from the drought year 2001]. It was a point not effectively rebutted by the feds.

Instead, Justice Department attorney Fred Disheroon admitted the passage model wasn't perfect, but noted that the federal analysis showed that few fish out of the million-fish run were going to be affected by the change to the spill regime, and that their numbers were within the study's margins of error.

He said the SIMPAS model used by the feds to estimate spill effects is a spreadsheet model that uses averages. But with no way to model real-time affects from flow fluctuations, the plaintiffs argued that real benefits couldn't be predicted.

Earthjustice attorney True also argued that the model overestimated survival of fall chinook through Lower Granite Reservoir because the 55 percent survival rate was calculated in 2003 at a time when extra water was being released from Brownlee.

Ninety percent of the fall chinook were barged, said Disheroon, leaving the rest to cope inriver, where improved bypass systems built at dams in recent years have created alternative routes to turbines. By the time the inriver migrants reach Bonneville Dam, he said only 20 percent of them are still alive. Put in context, said Disheroon, the reduced spill regime calls for ending August spill at the lowest two dams when fish numbers are small. Furthermore, he noted that it has been found that spill at certain dams has actually been more harmful to fish than the bypass systems.

Disheroon said federal agencies estimated only nine to 27 more adults would return from the full summer spill program at a cost of millions of dollars.

Arguing the Brownlee release as "new" water, Disheroon said there was no evidence that it was going to be available this year until BPA had paid for it. Whatever the BiOp assumed, he said, the extra water wasn't going to be there without the agreement with Idaho Power.

"You're being asked to believe that Idaho Power was almost committing fraud," to take the money when they were going to release the water, anyway, Disheroon told the judge.

Disheroon said the expert opinion of the agencies was entitled to full deference, a point made more forcefully by attorney Jay Waldron, representing defendant intervenor Inland Ports Association.

"[The plaintiffs are] asking you to substitute your judgment for theirs," Waldron told Judge Redden, noting that it was an operational decision. He said Redden's inclination to rule for the plaintiffs on the grounds that the added flow was not "new" water was "dead wrong," because it wouldn't have been guaranteed for release in July unless BPA had paid for it.

But the judge felt otherwise, saying he found fundamental defects in the agencies' reasoning that the Brownlee water was really a new measure to mitigate spill losses. In his written opinion issued a day after the hearing, Redden said the agencies' own analysis "concludes that a curtailment of spill will kill many listed juvenile fish, yet there is no real offset offered by the government."

"Regardless," wrote Redden, "this is not a numbers game. We are faced with a conclusion reached by the government itself in the 2000 BiOp that the fish are in jeopardy unless the RPA reasonable prudent alternative is implemented. Given that the government has failed to demonstrate that the proposed modifications to summer spill operations are consistent with the RPA, the prospect of jeopardy would again rise if the proposed curtailment of spill were to occur."

NOAA regional administrator Bob Lohn told NW Fishletter that the injunction process was too limited to clarify some of the agencies' findings and correct misunderstandings in the short time frame allowed. Clearly, he said, a trial setting would have given federal attorneys more time to explain their analyses and decisions.

Lohn said he still believes the SIMPAS model is the "best, available science," and he pointed to recent progress reports that show significant improvement in juvenile survivals, "other than 2001," that show the region is "on track to achieving what we ought to be."

The NOAA administrator said Redden's decision shows that the judge has a strong interest in protecting fish, which will help ensure that the next BiOp will be adequate to protect fish and be legally defensible. A draft is expected by the end of the month.

BPA spokesman Ed Mosey said the ruling doesn't mean BPA will reduce its effort to support more cost-effective fish recovery measures after the six months staffers spent crafting the latest proposal.

Though most Lower Columbia tribes filed amicus briefs supporting the injunction that said the reduced spill plan was a violation of their treaty rights, they did not follow through on threats to litigate the issue on their own in the ongoing US v. Oregon process.

After the decision, Olney Patt Jr., executive director of the Columbia River Inter-Tribal Fish Commission, said common sense had prevailed. "Judge Redden's decision has shown the courts will shut down attempts by industry schemers and their BPA accountants to dictate Columbia River salmon policy with plots that slap the face of sound science."

But some of BPA's customers felt the decision showed that the region was heading in the wrong way. "Today's decision moves away from common sense salmon recovery," said Shauna McReynolds, spokesperson for the Coalition for Smart Salmon Recovery. "This was an opportunity for more cost-effective fish recovery and the current system doesn't seem to allow that."