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Ruling on NMFS has Little Effect on Power Plan - For Now by Phillip S. Moore Capital Press - May 16, 2003

PORTLAND -- Northwest Power Planning council predicts no changes in its newly amended Columbia Basin Fish and Wildlife Program as a result of last week's federal court decision overturning the National Marine Fisheries Service's Biological Opinion.

U.S. District Judge James Redden overturned the 2000 Biological Opinion on May 7, agreeing with a coalition of environmental and fishing industry groups, represented by the legal advocacy group Earthjustice, who claimed that the Fisheries Service failed to guarantee the survival of salmon and steelhead protected under the endangered Species Act.

In oral arguments before Redden, on April 21, Earthjustice attorney Todd True argued that the Biological Opinion did not protect the endangered fish from extinction.

"Our concern is that the opinion doesn't have the reliable and verifiable plan ensuring survival, which the Endangered Species Act requires," True said. "Instead, we're getting a lot of proposals which might work."

Although Earthjustice has previously declared its commitment to removing or bypassing the four Lower Snake River dams, as the only certain method for ensuring endangered salmon and steelhead trout survival, True said this wasn't part of his argument to the court.

"Breaching dams is one way to ensure survival, but it isn't what this case is about," he said.

"The judge ruled on a fairly narrow basis," said National Marine Fisheries Service spokesman Brian Gorman. "Plaintiffs have touted the verdict as demonstrating the dams need to be breached, but all the judge said was that we needed a greater degree of certainty. He didn't address the issue of dams," Gorman said. "This was all about offsite mitigation."

Specifically, he said, Judge Redden said federal agency actions needed to be guaranteed through formal consultations under Section 7 of the Endangered Species Act.

"For non-federal agencies, which the National Marine Fisheries Service cannot control, the Biological Opinion needed to offer proof that predicted activities would happen. He said we hadn't met that standard," he said.

Redden was to elaborate on his decision at a May 16 consultation. Unless he extends his decision to incorporate hydropower operations, spokesman John Harrison said the Northwest Power Planning Council would continue to implement its revised strategy for Columbia Snake River System operations, approved April 10.

Concluding a two-year process, the council developed amendment designed to bring the NWPPC program into accord with the 2000 Biological Opinion.

However, Harrison said a negative ruling on the biological Opinion doesn't mean a rejection of the NWPPC fish and wildlife plan.

"The issue is not whether the judge thinks these are the right things or wrong things to do. The issue is whether the (National Marine Fisheries Service) improperly relied on them," he said.

He said the council is charged with coordinating a regional plan for balancing the need for hydro-electric power with the needs of migratory fish species, especially those protected under the Endangered Species Act.

"Many of our things respond to the 'reasonable and prudent' actions, called for in the biological Opinion, but that' because it was intended that the opinion and our (fish and wildlife program) would be implemented at the same time." Harrison said, "We're not a federal agency and we're not implementing the Biological Opinion. So, this decision doesn't do anything to us at all."

The amended fish and wildlife program represents a "rethinking" of the 1982 program, which attempted to manage migratory salmon and steelhead by increasing summer and fall water flow from storage reservoirs in Montana and Eastern Washington, lowering reservoir levels behind the eight Corps of Engineers dams on the Columbia and lower Snake rivers, and "spilling" water to keep juvenile salmon away from dam turbines.

The new program is committed to establishing a scientific foundation for basin-wide biological performance objectives through a series of tests and experiments, said Washington council member Larry Cassidy.

"It's an important step that this fish and wildlife program doesn't incorporate permanent changes in river management," he said. "Instead, it recommends studying ways to make the river operations more efficient for power generation and salmon recovery."

Cassidy said moving away from the "simplistic" formula of more water equals more fish was inevitable, since it hasn't worked.

"There's no question that the accepted theory is that the faster you get (juvenile salmon) downstream, the higher the survival, but that doesn't translate into more water always being beneficial."

As an example, he cites The Dalles Dam, "where we're spilling 60 percent of the water behind the dam for the outbound migration."

Cassidy said this is causing nitrogen levels to rise too high, killing the fish the spill program is trying to help. "Instead, we will be doing spill tests throughout the system, to find the right balance."

If the power planning council's fish and wildlife program remains in effect, Bonneville Power Administration will reap "significant benefits" through reduced cost for electrical energy and reduction in the number of programs paid by BPA, said spokesman Ed Mosey.

However, the money saved won't be crucial to solving Bonneville's financial difficulties.

"Other areas are more significant, including rate relief for publicly owned utilities and buy-back programs to reduce load," he said.

The outcome, Mosey said, is more important for the ratepayers, especially farmers and food processors in eastern Oregon and Washington.

"They're the ones who'll benefit from cost reductions," he said.

"We're looking at a 15 percent rate increase this fall, unless our costs change. right now, there are hundreds of pieces to the salmon recovery program," Mosey said. "If we can reduce that to a smaller number offering the best benefit for the salmon, we can reduce costs and that benefits everyone in the region, especially dam breaching, the Pacific Northwest Waterways associations' executive director, Glenn Vanselow, said it adds to the uncertainty surrounding the Columbia Snake River System.

"Economic interests need stability, and this controversy has been ongoing for more than a dozen years," he said.

"This uncertainty isn't good for business," he said. "We need to end a process that has been going forward in fits and starts. What we need is a plan that's good for fish, good for business and good for some time."