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Judge Stops Federal Plan to Modify Summer Spill for Fish by Barry Espenson Columbia Basin Bulletin - July 30, 2004

A U.S. District Court judge on Wednesday approved a preliminary injunction stopping the implementation of a hydrosystem spill reduction plan that federal proponents said could reap as much as a $28 million windfall without harming the salmon and steelhead that spill is intended to help.

The decision by Judge James A. Redden came less than three hours after he heard the legal, biological and financial pros and cons of the plan and just days before it was to be implemented by the U.S. Army Corps of Engineers.

The judge said NOAA itself has documented that Snake River fall chinook salmon juvenile survival gains "have not materialized" as envisioned in the 10-year federal management strategy mapped out in December 2000. One component of that strategy -- NOAA Fisheries' Federal Columbia River Power System biological opinion -- is to spill water at four Columbia/Snake river hydroelectric projects in July and August as a means of passage for in-river migrants. The Snake River fall chinook stock is listed as threatened under the Endangered Species Act.

The judge called the summer spill regime a "core element" in the BiOp's reasonable and prudent alternative, a list of mitigation actions NOAA has said must be implemented to avoid jeopardizing the survival of the Snake River stock, and other listed salmon and steelhead species. Redden also noted that overall the RPA is not being implemented on schedule.

"Given that we are working from a deficit situation, we should not be cutting back on an effective mitigation tool," said Redden, who entertained the motion for an injunction within an ongoing lawsuit in his jurisdiction.

The 2004 summer spill reduction plan calls for an elimination of spill throughout August at the Columbia's The Dalles and Bonneville dams and at Ice Harbor (lower Snake) and John Day (Columbia) from Aug. 26 through Aug. 31. The injunction request says that represents a 35 percent in summer spill volume from levels called for in the BiOp.

The summer spill plan, developed by the Bonneville Power Administration and the Corps in cooperation with NOAA, says that any resulting fish losses would be mitigated through "offset" actions elsewhere that improve survivals. The one offset that federal officials have said will specifically mitigate for the loss of Snake River fall chinook is the purchase of 100,000 acre feet of water in July from Idaho Power's Brownlee Dam. The water has been released to enhance flows at a time when large numbers of the young fish are migrating toward the ocean. The flow of young fish tapers off later in the summer and officials estimate that 80 percent or more of the migrants collected and moved downstream via barges, leaving small numbers in-river.

That water, purchased for $4 million, has already been sent down the river but federal attorneys failed to convince the judge that it represented a "new benefit" for the fish. The plaintiff's in the case -- 19 fishing and conservation groups represented by Earthjustice -- say such flows were assumed in NOAA Fisheries survival analysis for the 2000 BiOp.

"If the offset does not work, that's the end of the story," Earthjustice attorney Todd True said of the federal contention that no net harm to the Snake River population would result from the spill reduction/offset plan. He said that flows of 100 KAF have been released in July in 8 of the past 11 years, presumably pushed through Brownlee's turbines to meet IPC's power demands.

Justice Department attorney Fred Disheroon called the plaintiffs' interpretation of the BiOp faulty.

"And no matter what was assumed in the biological opinion, it was not going to be there," Disheroon said of the 100 KAF to augment flows. The IPC had notified the federal agencies in June that the water would not be available this year. So BPA pursued the contract for its release to help balance the spill proposal.

"It's real water and it has real benefits," Disheroon said.

BPA, which sells the power generated at the dams, and the Corps have estimated that the new plan would provide equal or better biological benefits overall that the BiOp operations, for listed and unlisted fish, while allowing it a net gain of from $18 million to $28 million. The revenue gain would be produced by the larger volumes of water channeled through turbines instead of spill gates.

Federal attorneys, and those representing power and other economic entities, argued that the spill reduction/offset plan was indeed biologically sound and better served the public interest by helping keep power rates down. They said rate increases of recent years totaling nearly 50 percent have served to send the regional economy in a downspin.

C. Clark Leone of the Public Power Council told the judge that her organization's members -- 114 consumer owned utilities -- would not support a spill plan that hurts the salmon recovery efforts. If recovery were attained, less money would be needed for fish and wildlife efforts. That would reduce that cost to the federal power system and the cost they must charge utilities that purchase the power.

"Theses utilities want fish back in the river more desperately than the plaintiffs do," Leone said. "Spending the money more wisely means that more fish can be saved."

Jay Waldron of the Inland Ports and Navigation Group supported the federal attorneys' contention that the judge has jurisdiction in the overall lawsuit, but lacks jurisdiction on the spill reduction issue. Redden is presiding in a lawsuit that challenged legal and scientific validity of the 2000 BiOp. The plaintiffs say the RPA does not do enough to help listed fish and that many of its provisions are not being implemented. Redden in May 2003 declared the document's no-jeopardy conclusion arbitrary and capricious and ordered NOAA to correct a number of deficiencies. That remand is ongoing, with a draft BiOp expected at the end of August. Meanwhile, the 2000 BiOp was left in place.

Waldron described a seven-month process during which the spill reduction/offset plan was developed and fine-tuned. The end result was a NOAA assessment or "finding" that the plan would cause no harm to the listed stock.

"They're asking you to substitute your judgment (for NOAA's expertise) on harm," Waldron said.

The Justice Department has argued that the court should not even consider the preliminary injunction because the 60-day notice of future litigation provided by the plaintiffs in February is not valid.

"No right to file a suit arises under the ESA citizen-suit provision until there is an alleged violation of the ESA, which cannot even begin to arise until an agency takes final agency action. Plaintiffs cannot submit their 60-day notice to alleged violators of the ESA prior to the actual alleged violation," according to a July 22 federal motion. The spill reduction is to begin Aug. 1.

The federal motion also says that neither the Corps' implementation decision nor the NOAA findings are a reviewable as a "final agency action" under the terms of the Administrative Procedures Act. The defense said that neither falls within a category of decisions considered final agency actions -- agency rules, orders, licenses, sanctions or relief.

Justice Department attorney Fred Disheroon told the judge that the spill reduction plan is "simply to change their implementation plan for this year. That, your honor, is a normal operation," not a legally defined final agency action.

He said the court does not have the jurisdiction to review every Corps operational change, "as long as they are consistent with the decision that was made in the first place." That final agency action was the Corps' record of decision accepting the 2000 BiOp's term, he said. NOAA Fisheries, in its findings and in a declaration from regional chief Bob Lohn, confirm that the spill plan is consistent with the BiOp.

"The expert judgment of the agencies deserves full deference," Disheroon said.

Earthjustice attorney Todd True argued that the spill plan is a modification of that final agency action and thus merits review under the APA.

Redden in an order issued Thursday said the plaintiffs' could "rely on the APA for jurisdictional purposes" in seeking the injunction.

"In reaching this conclusion, I reject defendants' argument that the decisions at issue were not final agency actions. Regardless of the form in which the agency decisions were made., they have the serious legal consequence of modifying the spill regime called for in the 2000 BiOp (including the RPA)," the judge wrote.

Cutting spill poses the prospect that "jeopardy could again arise," Redden said.

Judge Redden said he realized the economic significance of the spill issue.

"But my job in this case is to look at what is put before me," Redden said. Those issues involve assuring that the biological opinion meets the mandates of the ESA and APA.

Redden said had "given serious consideration to the fact that a decision to enjoin the government will have some impact on ratepayers. Given the danger, however, to the juvenile fish if summer spill is curtailed, and the evidence that the plans and efforts to boost juvenile survival rates are not working, the balance of interests weighs in favor of an injunction."

"The Court's decision is a significant step for the future of wild salmon," True said. "For the first time 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."

Disheroon said Thursday that no decision had been made whether the federal government would appeal Redden's decision.

The agencies stand by the spill plan and its effects analysis.

"We put a lot of effort into it. I think Gen. Grisoli felt we made the right call," the Corps' Witt Anderson said. Grisoli is commander of the Corps' Northwest Division.

Lohn would not predict whether such a plan would be resurrected, or supported by his agency in the future. He said NOAA's analysis of biological benefits and findings were specific to this year's water conditions. He said the findings did not diminish the value of spill as a passage option.

Lohn said the issue does "highlight the need to make improvements at the dams" that will allow spill passage utilizing smaller amounts of precious water. The Corps has implemented such technology -- called removable spillway weirs -- at Lower Granite Dam and installation is scheduled this winter at Ice Harbor. Such devices should help ease the tension between power ratepayers and fish advocates, he said.

Bonneville officials -- set to renew their safety net cost adjustment clause Oct. 1 -- were disappointed at the decision.

"We had very carefully over many months been trying to construct a program that protects these fish," said BPA's Ed Mosey. "Obviously the judge didn't agree."

Mosey said that the spill reduction plans was a key part of the agency's ongoing effort to reduce costs and enhance revenues to the point that rates could be reduced.