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Groups File Suit Against Washington State Over Spill Limits at Federal Columbia/Snake Dams by Phuong Le Columbia Basin Bulletin, June 4, 2010

Fishing, business and conservation groups filed a lawsuit Thursday against the Washington Department of Ecology, saying the agency has failed to aid imperiled salmon and steelhead stocks by limiting spill at federal Columbia/Snake River dams.

The groups say such spill is critical to aid migrating salmon and steelhead past the hydro projects.

In response, WDOE officials say the agency is following the rules of the federal Clean Water Act in determining how much spill should be allowed over the dams.

The officials say the agency does not believe the overall benefits of the additional spill, versus detrimental effects to other aquatic life, are "clear or sufficient for a rule revision."

The lawsuit, filed in Thurston County Superior Court, challenges Ecology's recent denial of a petition filed on behalf of the Pacific Coast Federation of Fishermen's Associations, Northwest Sportfishing Industry Association, the Association of Northwest Steelheaders, and Idaho Rivers United to change the standards governing how much water may be released over the dams.

The groups are represented by Earthjustice, a non-profit public interest law firm. The petition sought to allow the U.S. Army Corps of Engineers to spill more water than is now permitted under Washington regulations. Spill is generally considered the most benign route of passage for juvenile salmon headed downstream toward the Pacific Ocean.

Spill at federal dams on the Columbia and Snake rivers are constrained by state "total dissolved gas" standards. Washington's standards allow a TDG level of 120 percent in the area immediately below a dam's spillway (the tailrace), 115 percent in the area just above the next dam downstream (the forebay).

The groups, citing Fish Passage Center data, say that, in 2006, the 115 percent limitation reduced spring spill for salmon migration by 4.1 million acre feet of water, and led to reduced numbers of salmon and steelhead that survived migration through the lower Columbia and Snake River dams. Depending on the specific run and river flow conditions, studies have estimated that eliminating the 115 percent forebay standard could increase salmon and steelhead survival from 1 to 9 percent, according to the groups.

The state of Oregon looked at the science and recently dropped the 115 percent forebay limit to increase fish survival, according to a press release announcing the filing of the lawsuit.

"I am fed up with Ecology's willingness to allow the hydro-system to kill too many endangered fish and ignore both science and economic reality," said Glen Spain, Northwest regional director of the Pacific Coast Federation of Fishermen's Associations, a trade organization for West Coast commercial fishing families. "This case seeks to give salmon more of what they need to survive, as well as help the coastal and inland communities that depend on those fish for their livelihoods."

"We have spent too much money and put in too much effort to bring back our Columbia Basin salmon and steelhead to stand by while Ecology denies the public's fish their best chance of survival," said Norman Ritchie, Government Affairs director of the Association of Northwest Steelheaders.

"By preventing the release of more water for spill over dams, Ecology is ignoring the number one tool available to help our Northwest salmon economy recover and become strong again," said Liz Hamilton, executive director of the Northwest Sportfishing Industry Association. "Spill is a proven, effective action that helps to ensure that there will always be sustainable salmon runs for the people and communities that depend on them. But with Washington's standards in place, the fish will be denied the spill they so desperately need."

The groups contend that monitoring, conducted over the last two decades, continues to demonstrate considerable benefit to salmon survival from increased spill levels. Even in low water conditions, releasing water over the dams has helped produce some of the best returns of salmon and steelhead seen in many years, say the groups.

A drawback is that the spilled water plunging into the tailrace implants gas into the water that can be harmful to fish and other aquatic organisms. The more spill, the more gas that is created.

The groups link this year's strong return of spring chinook salmon to "the more natural river conditions created by these water releases, put in place by court order resulting from Earthjustice litigation" in recent years past.

The change in the TDG waiver was first sought via a petition to the state agency in June 2009. It was denied based on the conclusion that "aquatic life such as frogs, sturgeon larvae, fish, and daphnia experience adverse effects at TDG saturation levels approaching 120 percent, according to a new petition filed in March of this year. The groups said that the 2009 process failed to consider relevant studies that show that aquatic life will not be harmed by the removal of the 115 percent forebay limit.

The new petition said the WDOE failed to consider the benefits to salmon and other species such as Pacific lamprey.

"Based on this relevant evidence and new information, as well as the information in our June 2009 petition, SOS requests that Ecology grant this petition and remove the 115 percent forebay limit or, alternatively, increase that limit to 120 percent," according to the petition filed by Save Our Wild Salmon.

A statement issued by WDOE Thursday says the agency "follows the rules of the federal Clean Water Act in its determinations that result in how much spill is allowed over dams in the Columbia and Snake rivers to help juvenile fish migrating to the ocean.

"We think it's helpful to emphasize that Ecology already allows more spill over dams on a dam-by-dam scenario through adjustments to state water quality standard rules," the statement says of "waivers" granted by the state.

A May 7 response to the new petition signed by Ecology Director Ted Sturdevant said the agency "does not believe the overall benefits of the additional spill versus detrimental effects to the other aquatic life are clear or sufficient for a rule revision." The letter said that the decision was based on the results of a thorough review and analysis conducted by the agency in 2007-2009. During the review WDOE gathered technical information from experts who supported and opposed the 115 percent forebay criterion.

The resulting report concluded that "Ecology determined that there would be potential for a small benefit to salmon related to the fish spill if the 115 percent forebay criterion was eliminated, but there would also be the potential for a small increase in harm from increased gas bubble trauma. The weight of all the evidence from available scientific studies clearly point to detrimental effects on aquatic life near the surface when TDG approaches 120 percent."

The Superior Court filing can be found at: seattletimes.nwsource.com/html/localnews/2012021415_apwasalmondams.html

Here is a link to the petition on Ecology's Columbia/Snake river website. It is the top link under Washington Activity. www.ecy.wa.gov/programs/wq/tmdl/ColumbiaRvr/ColumbiaTDG.html

A copy of Sturdevant's letter of response to the petition can be found at: www.ecy.wa.gov/programs/wq/tmdl/ColumbiaRvr/2010PetitionAmendTDG-EcyResp.pdf