by Jim Mann
Federal dams in Montana won't be affected by a recent court injunction, but Bonneville Power Administration customers contend there will be substantial financial impacts from the ruling.
This week, the U.S. Justice Department and a group of Bonneville Power Administration customers filed an appeal of U.S. District Court Judge James A. Redden's June 10 order.
They say the order is misguided and an abuse of discretion that will cause immediate and irreparable harm to the economy and salmon stocks in the lower Columbia River system that it is intended to help.
The appellants want the 9th Circuit of Appeals to suspend Redden's injunction before June 20.
The injunction is the result of a lawsuit filed by a coalition of fishing and conservation groups against federal agencies charged with recovering threatened and endangered salmon stocks.
Those plaintiffs had asked the court for a substantial increase in flows from Hungry Horse and Libby dams, but Redden rejected that request, instead ordering increased spill from a series of Snake River dams to help salmon in the lower Columbia Basin.
The plaintiffs were requesting an additional 200,000 acre-feet of water from Libby's Lake Koocanusa and 50,000 acre-feet from Hungry Horse Reservoir.
Greg Hoffman, the U.S. Army Corps of Engineers biologist at Libby Dam, calculated substantial changes in Kootenai river flows that raised concerns among Montana officials.
The Kootenai River is currently projected to have flows running at a stable 14,000 cubic feet per second from June through the end of August, with the reservoir dropping to 20 feet below full pool by the end of summer.
The plaintiffs request for 200,000 acre-feet would have translated to flows being maintained at 15,700 cfs all summer and the reservoir dropping 25 feet below full pool.
The problem with that, Hoffman said, is that when flows are reduced from 15,700 to the minimum flow of 4,000 cubic feet per second in September, the Kootenai River is dewatered to a greater degree, with biological consequences.
Brian Marotz, the fisheries projects manager for Montana Fish, Wildlife and Parks, called it a serious issue for Montana.
When you drop the flows, you completely reset the river's biological productivity, he said. It just really has a major effect on the productivity of our rivers.
The downstream benefits, however, are highly questionable, Marotz said.
Redden's order struck down a 2004 biological opinion that guided dam operations and salmon recovery efforts. The injunction requires the corps to provide spill from June 20, 2005, through August 31, 2005, of all water in excess of that required for station service, on a 24-hour basis, at the Lower Granite, Little Goose, Lower Monumental, and Ice Harbor Dams on the lower Snake River, and of all flows above 50,000 cubic feet per second at the Columbia's McNary Dam.
By contrast, the 2004 biological opinion did not call for spills at the five dams except for an amount at Ice Harbor that is much smaller than what the judge is requiring. The opinion instead called for maximizing the collection of migrating juvenile fall chinook and transporting them aboard barges to a point below the lowest dam in the system, Bonneville Dam.
The BPA customer group contends that releasing water over dam spillways, rather than saving it for power generation, comes with a huge financial cost and uncertain benefits for migrating salmon.
The injunction, with its $67 million price tag, will cause needless irreparable harm to the Northwest economy and the BPA customers, the customers appeal filing says.
The group includes Northwest Requirement Utilities, Pacific Northwest Generating Cooperative, Industrial Customers of Northwest Utilities, Alcoa, Inc., International Association of Machinists and Aerospace Workers and the Public Power Council.
By issuing its mandatory order, the court has for the first time injected itself into the day-to-day management of an extremely complicated system of dams. Courts lack the expertise to undertake this task and should not be in the business of running dams, the appeal says. Moreover, the court overlooks the significant harms the injunction will impose on both the fish and ratepayers and engaged in a legally erroneous analysis of the merits.
Bruce Measure, one of Montana's two representatives on the Northwest Power and Conservation Council, was relieved that the judge's injunction did not have implications for the Montana dams.
But he pointed to wording in the judge's ruling suggesting that the summer flow augmentation issue has yet to be settled.
Redden ruled that the parties and their representatives shall engage in a collaboration to resolve the issues related to flow augmentation.
He's told the parties that they have to sit down and figure this out, he said. What Montana is looking for is the status quo.
If there is continued insistence on additional flows from Libby and Hungry Horse, Measure said, Montana is probably going to have problems with that at some point.
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