Ruling Cheered;by Barry Espenson
The reaction to Wednesday's federal court decision blocking a hydrosystem spill reduction plan was, predictably, sharply divided with fishing and conservation groups, as well as Columbia River basin treaty tribes, hailing the ruling and economic interests decrying what appears to be a lost opportunity.
U.S. District Court Judge James A. Redden, following oral arguments, granted a request by fishing and conservation groups to halt a plan that would have ended spill Aug. 1 at Bonneville and The Dalles dams and at Ice Harbor and John Day dams on Aug. 26. The judge called the summer spill program a "core element" in the reasonable and prudent alternative outlined by NOAA Fisheries in its 2000 biological opinion on Federal Columbia River Power System operations.
That BiOp, now under remand by order of Redden, declares that the eight Columbia/Snake river dams' planned operations threaten the survival of eight of 12 Columbia Basin salmon and steelhead stocks that are listed under the Endangered Species Act. The document lists 199 actions, including summer spill, that NOAA said needs to be implemented to avoid jeopardizing the survival of the listed stocks.
Only one listed stock, the Snake River fall chinook salmon, was expected to be affected by the planned spill reduction. Young Snake River fish migrate toward the ocean during the summer months. The spill reduction plan was developed by the Bonneville Power Administration and Army Corps of Engineers, with concurrence from NOAA.
It acknowledged that the spill reduction would have some impact on Snake River fall chinook survival. A NOAA analysis estimates that the toll would be the loss of from 9 to 27 fish out of a Snake River fall chinook return that has totaled about 12,000 in recent years. BPA, which markets power generated at the federal dams, had pledged in the spill reduction plan to fund "offset" actions that the federal agencies had calculated would improve survival elsewhere that would more than make up for the spill losses, including those to unlisted fish such as the Hanford reach fall chinook stock. The cost of those offsets is estimated at $9.6 million.
Spill is generally accepted to be the most benign route of in-river passage through the federal hydrosystem. But federal agencies have said that because nearly 80 percent of the summer migrants are collected and barged through the system, and because the vast majority of the fall chinook salmon have exited the Columbia by the end of July, damage to the fish population would be minimal. Under the plan the water that is normally spilled would be instead channeled through the turbines to generate power that can be sold as surplus to bring in additional revenue. That in turn improves the chances that BPA could decrease its wholesale power rate to Northwest customers on Oct. 1.
A key offset was BPA's purchase of 100,000 acre feet of water from Idaho Power Company that has been released this month from Brownlee Dam on the Snake River this month. The enhanced flows were expected to improve survivals of the Snake River juvenile migrants by 715 to 1,075 as compared to the anticipated loss of from 109 to 927 juveniles as a result of the spill reduction.
But the judge cited "fundamental defects" in the agencies' reasoning regarding the offsets, saying a large part of the purchased flow had already been assumed in the BiOp's survival calculation and thus was not "new water."
Redden also said that deviating from BiOp's RPA could mean that the "prospect of jeopardy could again arise." He cited the fact that since the adoption of the 10-year BiOp, Snake River juvenile survival rates have actually dropped. Federal officials noted, however, that adult fall chinook returns in recent years have been the strongest in decades due to recovery efforts and the favorable conditions that now prevail in the ocean.
Northwest tribes, conservationists and fishing-industry officials cheered the ruling. The original lawsuit was brought by the National Wildlife Federation and 18 other groups against NOAA Fisheries. Four tribes, the states of Idaho, Montana, Oregon and Washington, and numerous farm, utility and river user groups have since joined the lawsuit either as intervenors or amici. The Corps was recently added to the lawsuit as a defendant.
"Today we celebrate a great victory for salmon," said Jay Minthorn, chairman of the Columbia River Inter-Tribal Fish Commission. "The spill program serves an important part of Northwest salmon recovery; we must remain vigilant to ensure Northwest congressional leaders and the Bush administration fully implement all components of the Federal Salmon Plan."
"Common sense prevailed today," said CRITFC executive director Olney Patt Jr. "Judge Redden's decision has shown the courts will shut down attempts by industry schemers and their BPA accountants to dictate Columbia River salmon policy with plots that slap the face of sound science."
Utility interests and other proponents of the plan were chagrined.
"Today's decision moves away from common sense salmon recovery," said Shauna McReynolds, spokeswoman for the Coalition for Smart Salmon Recovery. "This was an opportunity for more cost-effective fish recovery and the current system doesn't seem to allow that."
The federal spill plan was developed over the past year and has the support of the governors of Washington, Idaho and Montana. Oregon's governor, Ted Kulongoski, filed papers in favor of the injunction, saying the Brownlee "offset" represented a "double counting" of benefits already assumed in the BiOp jeopardy analysis.
The Smart Salmon Recovery coalition of utility and business organizations says the spill reduction translates to up to a 2 percent decrease in rates from what they would otherwise be and that the offsets would legitimately counterbalance adverse effects to listed and non-listed fish. A NOAA Fisheries' findings letter of July 1 endorsing the spill reduction plan said that the spill plan provides "the same or greater biological benefits" as current hydro operations.
"The system is broken," said Pat Reiten, president and CEO the Pacific Northwest Generating Cooperative and a member of the coalition. "We've got to figure out a way to get real cost-effectiveness into the formula."
"The Coalition is in this for the long haul and will keep pushing for smarter salmon recovery," said McReynolds.
A member of Washington's congressional delegation, Rep. Doc Hastings, lambasted the judge's decision.
"Today's ruling tosses aside months of cooperative effort and a very modest change that would actually help endangered fish more and save Northwest families and job-creating businesses between $18-28 million in lower power bills," Hastings said. "The number of endangered fish helped by summer spill can literally be counted on your fingers and toes, and this judge's ruling says we ought to continue the ridiculous policy of paying millions for each fish."
"This decision defies common sense and, if it stands, could cause a power rate increase in October," Hastings said. "I call on the appropriate officials to immediately appeal and seek to overturn this ruling."
Plaintiffs in the lawsuit praised the judge's action, saying it helps force the Bush administration to be more protective of the fish resource.
"This administration continues to demonstrate that it is out of step with the Pacific Northwest when it comes to protecting wild salmon and the communities that rely on them," said Jan Hasselman, counsel for National Wildlife Federation in Seattle. "The spill rollback plan was based on phony science and phantom trade-offs. It is becoming clear that this administration simply cannot be trusted when it comes to protecting our regional icon."
Fishing groups were likewise pleased with the decision, pointing out that the federal analysis estimated that the spill would have reduced the fall chinook return, including non-listed fish, by more than 29,000 adult salmon. Such a reduction in returns could have resulted in a tightening of fishing seasons already under severe ESA limitations.
"With this decision we rest assured our industry will be 'open for business' when millions of visitors come to see the river of Lewis & Clark in the next few years," says Liz Hamilton, executive director, Northwest Sportfishing Industry Association. "We have not solved all the problems of the Northwest salmon economy, but this court prevented a long term problem by ruling that spill must continue. It's clear that spill is the most important safeguard under the current configuration of the hydrosystem."
Tribal fishers too say the decision is an economic boon, not bust.
"Rather than heap the burden of salmon loss onto the shoulders of fishing communities and businesses, we must hold accountable those who make money off measures that dwindle salmon populations," said CRITFC Commissioner Ronald Suppah Sr., who chairs the Warm Springs tribe's fish and wildlife committee. "Summer spill reflects one of the few consistently successful requirements in the Federal Salmon Plan, which remains in force by court order until a new plan reaches completion."
A draft BiOp is scheduled to be released by Aug. 30. The judge ordered that the document be reworked because the plan relied inappropriately on a variety of state and private actions that were not sufficiently certain to occur. The plan remains in force until a new plan is completed in late November.
One group countered the contention that the spill reduction would be a huge boon to the regional economy, saying it represented 7 cents on the average consumer's monthly power bill.
"Today Judge Redden looked through the rhetoric and saw that pennies saved on a monthly electric bill were not worth risking the collapse of the salmon-dependent communities and economies of the Northwest," said Sara Patton, executive director, NW Energy Coalition. "Though we disagreed with many electric utilities on this issue, they have real concerns that we take seriously. Rising electric rates since 2001 have hurt people and businesses. Now it's time to listen to each other, and look for common ground. Northwest people want clean, affordable electricity and wild salmon - and they're right. We can have both."
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