BiOp Judge Orders More Spring Spill,
by Bill Rudolph
Federal District Court Judge James Redden has ruled in favor of part of a motion by environmental and fishing groups that calls for more spring spill to help juvenile fish get over federal dams, though he granted less spill than they wanted.
At a Dec. 15 hearing on oral arguments, Redden said he needed a week or two to make up his mind about the spring spill issue. On Dec. 29, he announced the plan to increase spill on top of an already boosted summer spill regime that he previously ordered.
A preliminary analysis pegged the additional cost to the region at about $60 million above the $360 million mandated for fish operations in the 2004 hydro BiOp, said Bonneville Power Administration spokesman Ed Mosey.
At the hearing on Dec. 15, Redden upheld more spill for summer operations--a strategy that began last year when the BiOp plaintiffs [NWF v. NMFS] won part of a motion to change hydro operations. But Redden did not grant the plaintiffs' latest request for more flow augmentation. He said flow benefits were an issue both sides could work out during the year-long remand period that has started ticking down to create yet another hydro BiOp. He's thrown out two of them since June 2003.
Federal agencies, citing their latest survival research, developed a new proposal that would spill more water in early April than is specified in the 2004 BiOp, and then move to a maxed-out fish barging strategy beginning April 20.
But the judge wasn't convinced by the scientific rationale for the late barging strategy spelled out in a declaration by NOAA Fisheries scientist John Williams. So Redden ordered the early spring spill regime proposed by the feds to continue through June.
However, the feds had concluded their proposal would likely make a big difference in adult fish returns. Williams found that the smolt-to-adult return rate for later migrating spring chinook that were barged was higher than that of inriver migrating fish, while early inriver migrators survived to adulthood in higher numbers than barged fish.
Williams' analysis was disputed in dueling declarations by retired USFWS biologist Fred Olney and Tom Lorz, hydrologist with the Columbia River Inter-Tribal Fish Commission. Both argued that the NOAA Fisheries' analysis relied only on a sample of fish that had cleared the bypass system at Lower Granite Dam. They said the sample was biased since it had not included any smolts that had not been detected because they went either over the dam spillway or through the turbines.
They also criticized the federal analysis because it only used data from four years out of nine for which it was available, and they claimed that the data actually reflected inriver SARs that were higher than transport SARs in three of the four years analyzed by the feds.
But federal scientists say they only used the recent years' data because earlier results were compiled when juvenile fish numbers were low and they weren't tagged to split them into weekly groups to facilitate statistically significant results. Besides, the feds said, the earlier years didn't show that barging fish was worse than migrating inriver.
However, even in previous years, say the feds, steelhead have clearly benefited from the fish transportation strategy, so the judge's decision will likely mean that fewer adult steelhead will return to Idaho. They estimated a 16-percent boost in returns of wild chinook, and nearly 25 percent more wild steelhead from their proposed change in operations compared to the 2004 BiOp mandates. The feds estimated the plaintiffs' spring spill proposal would actually reduce wild chinook and steelhead returns by a couple percent compared to the 2004 BiOp.
But Redden said the differences reflected the continuing uncertainty about relative benefits of barging and inriver passage, and he called the feds' late spring max-barging proposal a "radical departure" from their "spread-the-risk" philosophy and "not justified in light of the best available science."
The judge completely ignored the main point of one of the federal scientists--that fish bypassed at dams are generally smaller than those that pass dams via spillways and turbines, and are likely to incur higher mortality simply because of that. So, comparing barged and inriver fish survivals was an apples/oranges sort of thing.
The judge also nixed a Corps of Engineers' proposal to end summer spill on Aug. 15, two weeks earlier than usual, if 95 percent of the run had passed the dam, but he said the idea should be examined during the remand. Redden did not grant the plaintiffs' call for doubling summer spill at Lower Monumental Dam.
Redden also said the plaintiffs failed to make their case for more flows, citing a 2003 study by the Independent Scientific Advisory Board that found the "prevailing rationale for flow augmentation is inadequate" and new information did not agree with the "prevailing flow-augmentation paradigm" that says inriver fish survival is "proportionally enhanced by any amount of added water."
The flow issue will be just one of many differences to be hashed out between the parties during the remand process, which has already begun.
On Jan. 3, the feds gave the judge their first status report on the process, which includes federal agencies, the four Northwest states, and many upriver and downriver Columbia Basin tribes.
The document spelled out an approach that establishes recovery objectives, assesses the current status of listed fish populations, and identifies gaps between current and recovered status. Then, mortality factors that contributed to the gap will be identified and prioritized before recovery actions are considered.
The report also outlined a collaborative process that will provide guidance for reaching agreement over tough issues like flow augmentation, but the feds pointed out that they will still have the final say in making decisions under the ESA "even if the other sovereigns do not agree with those decisions."
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