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Umatilla Tribes Say Will Sue If Summer Spill Curtailed by CBB Staff Columbia Basin Bulletin - April 23, 2004

Saying that spilling water over dams is the safest route for juvenile salmon and steelhead, the Confederated Tribes of the Umatilla Indian Reservation threatened this week to sue the federal government if summer spill at Columbia River dams is curtailed as proposed.

The Bonneville Power Administration and the U.S. Army Corps of Engineers proposed a three-year program that could save BPA as much as $45 million each year by reducing spill at dams in July and completely eliminating spill in August. A complete elimination of summer spill in July and August would save the agency as much as $70 million.

An amended proposal is due this week and the federal agencies have said they would make a final ruling on the proposal by April 30.

BPA and the Corps have said the plan would cut the return of endangered Snake River fall chinook salmon by 2 to 20 fish as well as 1,575 to 12,600 other non-listed fall chinook salmon species, which is less than 2 percent of the run, according to Mike Hansen of BPA.

However, the Umatilla Tribes said the plan would actually impact thousands more salmon and steelhead, including fish returning to the newly-recovered Umatilla River, all of which the tribes consider important.

"Bonneville has misled the public with their message that summer spill would save $77 million and kill only 24 fish. Both those numbers are wrong," said Jay Minthorn, chair of the Umatilla's Fish and Wildlife Committee and vice-chair of the Columbia River Inter-Tribal Fish Commission. "The fact is that this action will cause the deaths of tens of thousands of fish across the region and set back salmon recovery."

The Tribes said that spill is "regionally undisputed as the safest passage route for salmon through dams" and cited as sources for the assertion the Independent Scientific Advisory Board, the Columbia River Inter-Tribal Fish Commission, along with federal agencies assigned to implementing Endangered Species Act (ESA) plans.

The goal of the reduced spill operation proposed by BPA and the Corps is to achieve similar or better biological benefits for salmon using offset mitigation at an estimated cost of $2 to $5 million, which is less than the cost of the current spill program, according to BPA. Those offsets include an accelerated Pikeminnow program and one-half of the benefit of Grant County Public Utility District's additional anti-stranding actions.

The two federal agencies are meeting Wednesday of this week to decide on an amended proposal, but the outcome of that meeting is unknown at this time, said Hansen.

"As far as the Umatilla lawsuit, we think that it is premature," Hansen said. "We haven't even made a decision on the final proposal, let alone know what NOAA would decide."

He said that a final proposal should be completed by April 30 and that would be sent to NOAA Fisheries for a decision, which BPA expects some time in May.

Rick George, counsel for the Umatilla Tribes, said that if the federal agencies formalize their proposal to curtail summer spill, the tribes would sue to stop the action. While he wouldn't say at this point which agency or agencies the tribes would sue, he said they are preparing actions to notify federal agencies under the 60-day notice required by the ESA, while also looking at other avenues to stop the federal action.

"This action is a shot over the bow to show Bonneville that it will not be allowed to reverse the Northwest salmon recovery effort," George said. He added that as soon as the federal agencies formalize their proposal to curtail spill, others would likely join in the lawsuit that will follow. For one thing, he said, every tribe in the Northwest, even those that no longer have salmon runs in their area, voted at the Affiliated Tribes' Northwest Indian conference two months ago to oppose the federal plan that would curtail spill.

"I think you will also see joining in commercial fishing organizations and communities where whole economies are at risk," George said. "Beyond that, I think we will see a regional and even national opposition because of the amount of investment already made in salmon recovery."

Nicole Cordan of Save Our Wild Salmon said her coalition welcomes the Umatilla action. Save Our Wild Salmon had already sent a 60-day notice to the Corps more than two months ago. That notice revolved around the general lack of success in implementing NOAA Fisheries 2000 biological opinion of the Federal Columbia River Power System (FCRPS), she said.

"Members of our coalition are deeply concerned about the Bonneville proposal and there is certainly a conversation around filing the complaint if BPA makes it and NOAA Fisheries accepts it," Cordan said. "Bonneville has put anyone who cares about salmon in an awkward position when folks feel like their only option is to litigate."

The Umatilla Tribes said they are not normally litigious, but the reduced spill proposed by the federal agencies could force them to go to court.

"Our policy has always been to negotiate rather than litigate, but this time our hand has been forced," said Antone Minthorn, chairman of the Umatilla Tribes' Board of Trustees. "Our only option is to enjoin the federal government to stop this action before it harms our fish, our efforts and substantial public investments. Hopefully, their delay in deciding to end spill means they are re-examining the political and legal implications of their proposal because we think they will lose in court."

One issue eating at the Umatilla Tribes, said George, is that the federal agencies completely ignored the impact of curtailing summer spill on Umatilla River fall chinook.

"Bonneville conveniently omitted that the federal government, which has poured more than $100 million into salmon recovery in the Umatilla River, was responsible in the first place, some 90 years ago, for the salmon's extinction when a federal irrigation project pumped all the water out of the river for crops," he said.

A study by BPA and the Corps determined the summer spill curtailment would impact 885 to 7,080 unlisted fall chinook adults returning to the Hanford Reach in the mid-Columbia River. It also determined an impact to other non-listed fall chinook species, totaling 690 to 5,520 fall chinook adults, but it didn't specifically identify those stocks, according to Hansen.

George said that about half of the $100 million spent by BPA ratepayers on Umatilla River salmon recovery went to redesign fish passage facilities at dams, while the other half went directly to recovering chinook and coho salmon, steelhead and now lamprey in the river.

"This has been the most successful recovery effort in the Columbia Basin," George said. "We went from zero salmon in the (Umatilla) basin for almost 80 years to over 30,000, and that's after the fisheries from Alaska down the coast and in the lower Columbia River take their share."

bluefish does the math for your convenience: BPA estimates that eliminating summer spill would provide 1.15 - 1.49 million Megawatt*hours (MWh) of "surplus" electricity to sell (typically to California) at an estimated average price of $32/MWh (yielding $37 - $46 million). Prices of course will vary with time of day and electricity market conditions. BPA estimates that elimination of summer spill could potentially provide a 2% electricity rate reduction.

Related Pages:
Confederated Tribes of the Umatilla Indian Reservation: www.umatilla.nsn.us
Bonneville Power Administration: www.bpa.gov