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Oregon Joins Spill Suit, Decision Due by Month's End by Bill Rudolph NW Fishletter, July 20, 2004

Gov. Ted Kulongoski announced last Friday that Oregon would join environmental and fishing groups to stop the reduced summer spill regime at Columbia River dams. It's promising to be a major showdown between the bean counters and the salmon counters over more cost-effective hydro operations that call for ending spill in August at two mainstem dams and curtailing it at two other projects.

Washington and Montana have already voiced support for the reduced proposal, with Idaho informally backing it as well.

In papers filed in an attempt to stop the new spill regime, Earthjustice attorneys said "juvenile migrating salmon are not fungible widgets that can be exchanged for each other without consequence." They said the hydro BiOp's core principles indicate that juvenile salmon throughout the migration must be protected to ensure genetic and life history diversity. They also say that the survival rate of juvenile fall chinook is "considerably lower" than a few years ago when the BiOp was issued.

Federal agencies who want to reduce spill by about 40 percent estimated the new plan could kill up to 1,000 ESA-listed Snake River fall chinook smolts out of a run size of about one million juvenile fish. BPA has bought $4 million in water from Idaho Power to make up for the lost smolts, but critics say the action shouldn't be used as an "offset" because the water was likely to be released in July, anyway, Oregon's amicus brief claims that the release was already "contemplated and counted" in the hydro BiOp, so it can't be "double-counted."

Kulongoski echoed other critics of the reduced spill proposal, alleging it does not guarantee a reduction in power rates, nor fully mitigate for the loss of the additional fish. The proposal would also have negative impacts on the sports fishing industry in his state, he said.

Kulongoski said that the federal plan didn't help resolve long-term issues. "There's a better solution than simply shutting down the spillways," he said, "and that is to install newer, more effective spillway systems."

Utilities were not happy with Kulongoski's position. "It's surprising and disappointing," said PNGC Power vice president Scott Corwin. "Oregon's analysis runs counter to the intense analyses by the federal agencies that shows the proposal's offsets to more than cover any fish losses."

The July 9 filing by environmental and fishing groups seeks to amend the original 2001 complaint (NWF v. NMFS) to include the Corps of Engineers as an additional defendant. The earlier litigation led to the hydro BiOp remand process, now underway.

In a press release that announced the action, American Rivers said cutting spill "ignores the scientific advice of state, tribal and federal biologists, and would fail to offer significant relief to Northwest ratepayers, who would save only pennies per month on their electric bills."

But BPA says the reduced spill action could save the region up to $28 million after paying $13 million to offset both non-listed and listed fish losses.

The litigating group said with increasing salmon runs, "now is the time to be doing more, not less, to recover Columbia and Snake River salmon. Doing the bare minimum to merely avoid extinction is not acceptable." They said the region should not accept a "false trade off" between affordable energy and salmon recovery.

The amended complaint relies heavily on comments made in February by state and tribal salmon managers (along with USFWS) that took issue with the action agencies' original analyses, including the SIMPAS passage model that was used to estimate changes in juvenile survival.

In response to these and other comments, the action agencies considerably modified both their analyses and their spill proposal, and NOAA Fisheries approved an offset to the few ESA-listed fall chinook expected to be lost by the reduced spill regime. In the end, BPA was required to spend $4 million to improve flows through the reservoir above Lower Granite Dam before the feds signed off.

The amended complaint says that state, tribal and federal co-managers "unanimously criticized" this flow action as well, alleging the water was likely to have been available anyway. The complaint also argues that the agencies' estimate of impacts to fall chinook is too inaccurate to determine whether "this, or any other offset will adequately mitigate the harm to salmon and steelhead from spill reduction."

The action agencies have already responded to many of these comments in their final spill proposal, also noting that Idaho Power's base power plan did not call for releasing any water from Brownlee Reservoir in July.

The added complaint also claims the Corps of Engineers' decision to add the Brownlee water is illegal because "it continues to rely on the invalid 2000 FCRPS BiOp as the basis for the Corps' compliance with the ESA."

The plaintiffs argue that the Corps has not made a valid consultation regarding operation of the hydro system since the BiOp was declared illegal, therefore it is violating the ESA. They called on the judge to rule the Corps' actions "arbitrary and capricious," and enjoin the Corps to withdraw its statement of decision and NMFS to withdraw its July 1 findings letter that approved the Brownlee water deal that paved the way for acceptance of the spill proposal.

The effects of the reduced spill plan on non-listed stocks are outside the legal framework of the court's BiOp-centric focus, but several lower Columbia tribes have suggested over the past two months that they would sue in another federal court because the proposed action would adversely affect their harvest opportunities spelled out in the ongoing U.S. v. Oregon process.

To accommodate that possibility, BiOp Judge James Redden offered a highly unusual solution. In an e-mail communication with affected parties, he said "that if the Tribes file in U.S. v. Oregon for injunctive relief regarding the August spill, Judge King [the federal judge who oversees the confidential U.S. v. Oregon process] can join me on the bench at the July 28th hearing because the information presented at that hearing will be relevant to any motion for injunctive relief filed in U.S. v. Oregon. In addition, because I am statutorily prohibited from participating in U.S. v. Oregon (having formerly represented the defendant in that case), I have discussed with Judge King an arrangement whereby the last issue to be argued at the hearing would be Tribe treaty rights. I would leave the bench before those arguments because they are not involved in this case. We believe this procedure would be both appropriate and legal."

But the tribes may not go this route, which might somehow jeopardize their treaty rights, sources said. Last year, low prices for fall chinook saw a much reduced fisheries effort by lower Columbia tribes, which kept them from catching their total allotment of fall chinook before reaching their limit of ESA-listed steelhead, which ended the fishery.

Tribes may file amicus briefs instead, standing behind environmental and fishing groups in their last-ditch effort to stop the new spill regime scheduled to begin Aug. 1.

Charles Hudson, spokesman for the Columbia River Inter-Tribal Fish Commission, told Northwest Fishletter on July 16 that the tribes would file papers that day in the BiOp case on the summer spill issue.

"Tribal leaders are in discussions with their legal counsels about other options including bringing an action in U.S. v. Oregon," Hudson said by e-mail, "but I am not aware of any decisions to do that at this time. As you know, the spill proposal has bumped up hard against U.S. v. Oregon already with the Lyons Ferry yearling/sub-yearling piece. That 'offset' was removed after U.S. v. Oregon parties (Washington) met the requests of the Nez Perce Tribe to abide by the 2003 agreement."

Plaintiffs filed a motion for a temporary injunction July 16. Judge Redden will hear the issue in his court July 28 and has promised a decision by July 30.