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Redden Stresses Hydro System Fish Operations Not Optional by Staff Columbia Basin Bulletin, June 1, 2007

Saying his words are "not a product of anger, but frustration," U.S. District Court Judge James A. Redden in a May 23 order reminded federal agencies that it is not an option to shift away from Columbia/Snake river hydro system operations designed to benefit fish.

The Endangered Species Act, and strategies developed to assure listed Columbia River basin salmon and steelhead are not jeopardized, carry a legal obligation that outweighs business decision-making, according to the judge.

"I recognize that operating the FCRPS is 'an incredibly complex task,' and that BPA was faced with a 'difficult choice' on April 3, 2007," Redden wrote, quoting an explanation from the Bonneville Power Administration regarding deviations from fish operational prescriptions.

"BPA's choice, however, 'to operate certain turbines outside the 1 percent peak efficiency requirement' standard set out in the 2000 and 2004 FCRPS BiOps, and sacrifice the biological needs of listed species to satisfy its sales commitments to customers was wrong," according to Redden's order.

"This was not a system emergency. It was a marketing error, and ESA-listed salmon and steelhead paid the price. This, the law does not permit. Under the circumstances here, threatened and endangered species must come before power generation," Redden wrote.

The opinion and order explains the judge's view on an issue that emerged last month as the result of anonymous telephone message to the judge alleging BPA had "intentionally violated biological fish restrictions during 'the first part of April, end of March' to satisfy its hydro-power commitments, and sought to declare a system emergency to conceal the variance."

The deviances came on April 3 when turbines at the Columbia's Bonneville, McNary and The Dalles dams were operated for a few hours outside of the 1 percent efficiency range believed to be optimal for juvenile salmon and steelhead passage survival.

The shift -- moving more water through the generators in order to produce more power -- was brought on by a combination of required flood control drafts upstream that swelled the river, "higher than forecast demand for power, marketing commitments, and human error," which made it difficult to satisfy power commitments as well as implement actions described in 2000 and 2004 BiOps.

NOAA Fisheries Service issues ESA biological opinions that judge whether planned federal "actions" jeopardize listed fish. Measures, such as the 1 percent operation, are included as a means of improving fish passage survival.

The impact of the changed operation on fish, and of a reduction in spill for a few hours that same day at three lower Snake River dams, was described by Bonneville in briefs filed with the court as minimal, primarily because few fish had begun their outmigration.

The judge said there was no evidence that BPA intentionally violated an agreed-upon fish operational plan, and said BPA and the U.S. Army Corps of Engineers "are commended for their forthright and prompt response to the recent and unfortunate violations of fish-protection measures." BPA markets the power generated in the federal Columbia/Snake river hydrosystem. The Corps operates the four lower Snake and four lower Columbia federal hydro projects.

But he said he felt the need to "clarify and reiterate Federal Defendants' legal obligations under the Endangered Species Act (ESA), the 2004 Federal Columbia River Power System Biological Opinion (2004 FCRPS BiOp), and the 2007 Operations Agreement." The latter agreement between BPA and five Columbia Basin tribes details hydro operations, such as spill to accommodate fish passage, for the 2007 spring and summer migration seasons.

"BPA undertook a diligent, but unsuccessful effort to buy back the needed power" elsewhere, the judge said, but did not declare a federal hydro system emergency. The fish measures can be altered if conditions exist that threaten the reliability of the hydro system itself.

"Apparently, BPA's sales commitments to customers always trump its obligation to protect ESA-listed species. BPA must realize, however, that the fish-protection measures detailed in the 2000 and 2004 BiOps are not optional," Redden wrote.

He said that if the biological impact on migrating juvenile salmon was minimal because few smolts were present, "that result is more likely a product of good fortune rather than reasoned decision-making or planning."

"In any event, it is not clear that BPA's actions would have differed substantially even if a similar energy shortfall occurred during peak migration season, when the impacts on ESA-listed species would not have been 'minimal.'"

"I remain concerned, however, that BPA and the Corps do not view their commitments under the current operating agreement as binding legal obligations," Redden wrote. "To emphasize the point, I find it appropriate to incorporate the terms of the 2007 Operations Agreement into a court order. Federal Defendants do not object." The agreement had been filed with the court but the judge had not previously ordered its implementation.

The May 23 also said that, in the absence of a declared system emergency, BPA and the Corps must take all reasonable and practicable steps to notify the court and the parties to the lawsuit prior to any future departure from the fish-protection requirements set out in agreement or the 2004 BiOp.

If unforeseen circumstances arise that prevent prior notification, Redden said the federal agencies must report any operational variations as soon as possible and describe mitigation measures that may be appropriate to account for a violation. The other litigants would have an opportunity to respond, his order says.

Redden presides in an ongoing lawsuit that challenged the legality of the 2004 BiOp. He in May of 2005 declared the hydrosystem salmon protection strategy arbitrary and capricious under the ESA and in October of that year ordered the federal agencies to rework the plan. He left the BiOp's provisions in force during the remand process, which is not yet complete.

The lawsuit was launched by a coalition of fishing and conservation groups led by the National Wildlife Federation against the Corps, NOAA and the U.S. Bureau of Reclamation. The states of Idaho, Montana, Oregon and Washington and several Columbia basin tribes, as well as numerous river user groups, are also involved in the litigation.

Related Sites:
Feds Respond to Questions about April 3 Hydro Operations, Columbia Basin Bulletin, May 4, 2007