The state of Oregon and a coalition of fishing and conservation groups have asked a federal court to order increased flow augmentation and spilling of water for fish passage at Columbia/Snake river federal dams as a means of improving the lot of salmon and steelhead that are listed under the Endangered Species Act.

The motion for a preliminary or permanent injunction filed Nov. 25 seeks to override spill and flow augmentation provisions described in the NOAA Fisheries Service's May 5, 2008, Federal Columbia River Power System biological opinion.

The motion requests spring and summer spill in greater volumes than prescribed in the BiOp or past injunctions granted by the court.

It asks that reservoirs be tapped more deeply to improve the chance that water flow and velocity targets described in a 2008 FCRPS BiOp are met.

The motion requests that the reservoir behind the lower Columbia's John Day Dam be lowered to help speed migrating salmon toward the Pacific Ocean.

The injunction motion also asks the U.S. District Court enjoin federal defendants in an ongoing legal challenge of the BiOp to "implement all of the remaining provisions of the reasonable and prudent alternative as set forth in the 2008 BiOp, the provisions of the Memoranda of Agreement with various States and Tribes executed on or after April 20, 2008, and the projects and mitigation measures submitted by the State of Oregon and the Nez Perce Tribe to the Northwest Power Planning and Conservation Council, that impose obligations on federal defendants -- including the requested research and monitoring projects -- but only to the extent that the measures of the RPA and MOAs are consistent with the foregoing specific operational and other provisions of this injunction motion."

The injunction briefing schedule calls for a response from those defendants – NOAA, the U.S. Army Corps of Engineers and the Bureau of Reclamation – by Feb. 13. The Corps and the Bureau operate the FCRPS hydro projects.

Oregon and the coalition, represented by Earthjustice, want the federal agencies to "take the steps described more specifically in this motion to avoid further harm to ESA-listed salmon and steelhead and to improve their survival" pending a decision in the lawsuit.

The coalition, led by the National Wildlife Federation, and Oregon filed complaints this summer challenging the adequacy of the new BiOp. Summary judgment motions filed in September ask that the strategy be declared illegal, as were its predecessors in 2002 and 2004.

NWF and Oregon say NOAA's BiOp violates the Clean Water Act, as well as the Endangered Species Act and Administrative Procedures Act. The Nez Perce Tribe filed a brief in support of the two motions for summary judgment and filed a motion last week in support of the injunction request.

During ongoing briefing in the lawsuit, federal attorneys have defended the BiOp's legality. They have been joined by the states of Idaho, Montana and Washington, Umatilla, Warm Springs and Yakama and Colville tribes, the Kootenai Tribe of Idaho and Confederated Salish and Kootenai Tribes, Northwest RiverPartners and the Northwest Power and Conservation Council.

"Federal Defendants have heeded this Court's admonitions and submit that the FCRPS BiOp does just what this Court directed: After an extensive and fully transparent collaboration with the regional State and Tribal sovereigns, Federal Defendants have produced a comprehensive BiOp that is grounded firmly in sound science, that significantly improves the status quo, and that fully complies with the ESA and this Court's and the Ninth Circuit's orders," according to federal brief filed last month with Judge James A. Redden. His rejection of the 2004 BiOp was affirmed by the Ninth Circuit Court of Appeals. The 2008 BiOp replaces the 2004 version.

Oral arguments in the lawsuit are scheduled Jan. 16.

The states of Idaho, Montana and Washington were immediately critical of the injunction request.

"The participants in the collaborative remand found, after much discussion and analysis, that measures pertaining to spill and flow in this biological opinion are based upon the best available scientific information," according to a statement issued by the states. The four states and basin tribes were all involved in a technical and policy collaboration with the federal agencies during the development of the 2008 BiOp. It describes operational measures and off-site actions intended to improve salmon survival.

"More spill, without regard to the location, the timing, the length, and the rate, is not going to benefit all ESUs, may not benefit any, and may harm some. Contrary to this straightforward proposition, [plaintiffs] continue to advocate a 'one size fits all' theory, which rests on the proposition that more spill is always better," Idaho, Montana and Washington said. The 13 listed stocks are defined as evolutionarily significant units for ESA purposes.

Redden in 2004 and twice in 2005 ruled on injunction requests submitted by Earthjustice. In each case he ordered spill volumes at dams that, overall, exceeded those planned by the federal agencies. The fishing and conservation groups say survival is greater for fish that pass downstream through the dams' spill gates.

Citing uncertainty about the biological benefit, Redden did not order the agencies to increase flow augmentation from Columbia basin reservoirs.

The proposed injunction's "spill measures maintain and build upon the successful spill operations previously ordered by the court," according to a memorandum filed by Oregon in support of the injunction request.

NWF and Oregon say the 2008 BiOp retreats from spill levels called for in previous injunctions, cutting off spill May 7-20 and again before Aug. 31.

The injunction asks that the court order the Corps and Bureau to spill as much water as possible 24 hours per day from April 3 through Aug. 31 at the four lower Snake dams and from April 10-Aug. 31 at the four Columbia mainstem hydro projects. The limit would be total dissolved gas caps established by Oregon and Washington. Spill stirs up TDG, which at higher levels can be harmful to fish.

As an example, springtime spill at John Day Dam would be increased by from 27,000 to 131,000 cubic feet per second under the injunction proposal as compared to the BiOp prescription. The coalition also wants considerably more water spilled at Lower Granite and McNary dams. At other dams, such as Bonneville, The Dalles and Little Goose the differential is zero in spring.

The injunction proposal also calls for more spill at most of the dams in summer than is planned in the BiOp.

The injunction motion also says that the 2008 BiOp backs away from flow levels that it concluded in 1995 were the "minimum necessary to avoid significant harm to the survival and recovery of ESA-listed salmon and steelhead."

NWF would like Redden to order that flow targets established in 2000 be met "to the maximum extent possible in light of the relevant water forecasts, on a weekly basis during the entire spring and the entire summer salmon migration…."

The injunction motion suggests a resumption of the 20-foot drafts of western Montana's Libby and Hungry Horse reservoirs by the end of August. The new BiOp recommends 10-foot drafts by the end of September. The coalition cites Dworshak and Grand Coulee as other sources of flow augmentation water and suggests the purchase of water from the Idaho Power Company, which owns three dams on the Snake in Hells Canyon along the Idaho-Oregon border.

The injunction motion says that the John Day reservoir should be operated at minimum operating pool -- about 5 feet lower than the BiOp recommends -- from April 10 to Sept 30 each year, with necessary operational flexibility (typically a one foot operational range).

Decreasing the cross-sectional area of the reservoir channel by partial drawdown would have the effect of speeding water particle travel time which in turn would speed fish passage through the reservoir and improve their survival chances, Oregon and NWF say.