After making a few adjustments, federal agencies this week submitted to U.S. District Court a spring 2011 “fish operations plan” for mainstem Columbia-Snake river hydro projects that has been accepted by legal allies and foes.
“Consistent with past practices and in the interests of resolving the merits of this litigation, Federal Defendants have attached a proposed order for 2011 spring operations, which is largely identical to the spring operational order that was entered by the Court in 2010,” according to a “Notice of Spring Operations” filed by the U.S. Justice Department Tuesday for NOAA Fisheries, the U.S. Army Corps of Engineers and the Bureau of Reclamation.
“The States of Washington, Idaho, Montana, and Oregon, as well as the Warm Springs, Yakama, Umatilla, Kootenai of Idaho, Nez Perce, and Salish-Kootenai Tribes do not oppose entry of the proposed order. The Inland Ports and Navigation Group and the National Wildlife Federation plaintiffs do not oppose entry of the proposed order. Northwest River Partners takes no position,” the notice says.
Judge James A. Redden signed the proposed order Thursday.
The notice and proposed order were filed in long-running litigation over the federal plan – NOAA Fisheries’ 2008-2010 Federal Columbia River Power System biological opinion -- for assuring that the hydro system doesn’t jeopardize the survival of 13 Columbia-Snake salmon and steelhead stocks that are listed under the Endangered Species Act.
The state of Oregon and a coalition of fishing and conservation groups led by the NWF challenged the 2008 BiOp, and its 2010 successor. They claim the BiOp has a flawed strategy for assessing whether the hydro system poses jeopardy to the listed fish and does not include enough actions to adequately mitigate for hydro system impacts on fish. Oregon’s and NWF’s legal stances have been supported by the Nez Perce Tribe.
Allied with the federal defendants – NOAA Fisheries, the Corps and Bureau -- have been the states of Idaho, Montana and Washington, the Warm Springs, Umatilla and Yakama, Kootenai of Idaho and Salish-Kootenai tribes, the Inland Ports and Navigation Group, RiverPartners and others. The Corps and Bureau operate the dams. Also involved as a federal “action” agency is the Bonneville Power Administration, which markets power generated in the FCRPS.
The legal battle over the 2008-2010 BiOp is nearly at an end. Redden on Tuesday announced that oral arguments will be held at 9:30 a.m. May 9 at Portland’s federal courthouse. A decision on the legality of the BiOp would follow.
Spring and summer spill to provide passage for migrating juvenile salmon has since 2006 been guided by court orders. The court in late December 2005 adopted the federal defendants’ proposals for the amount and timing of spring and summer spill at FCRPS dams with a few exceptions. The Portland-based U.S. District Court judge’s order required more spill for fish passage at Snake River federal hydro projects from late June through August than had been provided, for the most part, previously.
Redden in that 2005 order also specified that spill levels proposed by the Corps for early spring be continued through May. The judge said “eliminating all spill and relying exclusively on collection and transportation of juveniles at Lower Granite and Lower Monumental dams from April 20 through May 30, and at Little Goose dam from May 26 through May 30” as the Corps planned was a “radical departure” from the long-followed policy of spreading the risk policy as evenly as possible between collecting and transporting young fish aboard barges and allowing them to migrate in-river.
Redden in June 2005 had approved a preliminary injunction request from the fishing and environmental groups that forced federal agencies that year to implement spill at the three Snake collector projects in late June through August and at McNary from July 1 through August, contrary to the prescriptions of the 2004 BiOp, which stressed maximum transportation during that time.
The judge in May 2005 had declared the 2004 BiOp illegal, though he left its directives in place while the federal agencies in collaboration with sovereign Columbia basin states and tribes developed a new BiOp. The outcome – the 2008 BiOp – was immediately challenged by NWF and Oregon.
“Since 2006 spring and summer operations have in large part been ‘rolled over’ from one year to another to avoid injunction proceedings while litigation regarding the BiOp(s) played out,” the March 22 notice says.
“The operations set forth in the spring FOP have been reviewed with the sovereigns in the Regional Implementation Oversight Group (“RIOG”). Consistent with those discussions, the operations set forth in the spring FOP are largely a continuation of the same operations that occurred in the spring of 2010,” the notice says. “This continuation of operations (or “roll-over”) has been modified only for essential research to accommodate the installation or adjustment of fish passage features, similar to previous operational year changes.”
The decision-making process did take some twists and turns. A draft FOP said that spring operations at John Day Dam from April 10 through June 30 would involve spill at 30 percent of the river flow 24 hours per day. Spring spill at John Day from 2008-2010 involved testing two spill levels – 30 percent and 40 percent – to evaluate which might provide the best fish survival.
A summary of the test results concluded “that it may be possible to achieve the performance standards at either 30 or 40 percent spill under the current project configuration. Under both spill operations in 2010, single-release estimates of survival from John Day to The Dalles Dam forebay for both yearling Chinook and juvenile steelhead either exceed or are approaching the spring migrant performance standard for dam passage survival (96 percent).”
Performance standards established in the 2008 BiOp and carried forward into the 2010 version aim to achieve at least 96 percent survival at each dam for spring salmon and steelhead migrants.
But Oregon and the Nez Perce Tribe objected to what they said was a deviation from the 2010 order.
A memo to RIOG from Joan Dukes said that “data and analyses indicates that juvenile in-river migrants perform better at 40 percent spill than 30 percent spill, and thus warrant more robust testing to clarify the results.” Dukes represents Oregon at RIOG.
“None of the available data for the current dam configuration support a reduction of spill to 30 percent in 2011. If a single treatment test is done in 2011, it should be done at the 40 percent spill level.”
She said that the Corps typically conducts two or more years of studies to adequately evaluate new configurations and operations when major changes are made at FCRPS dams.
“Because of major changes at John Day Dam in 2010, only the results of the 2010 study should be used for designing and evaluating spill levels and operations at John Day,” Dukes said. “These changes include the relocation of two Temporary Spillway Weirs to spill bays 18 and 19, installation of an extended deflector in spill bay 20 and installation of an improved avian deterrent wire array over the spillway stilling/tailrace. These changes in 2010 are not reflected in the studies conducted in 2008 and 2009.”
After a vetting of the John Day issue and other particulars within the fish operations plan, the Corps opted for a late April through early June operation at the lower Columbia dam “to assess passage distribution and efficiency metrics, forebay retention and tailrace egress times, and dam survival for yearling Chinook, and juvenile steelhead to determine if juvenile dam survival at 30 percent and/or 40 percent spill under the current project configuration meets or exceeds the juvenile dam survival performance standard for spring migrants (96 percent) specified in the 2010 Supplemental BiOp.” Springtime operations before and after the testing will be at 30 percent.
“The proposal was modified based on that discussion,” Rock Peters, the Corps’ Fish Program manager, said of the meeting of RIOG’s federal, state and tribal policy representatives.
Members of the NWF coalition cheered the decision.
“Professional fishermen just want to be on the river; we don't like to be in court,” said Bob Rees of the Northwest Guides and Anglers Association. “But if we didn't have a presence in the courtroom, we wouldn't have achieved salmon spill, and many of us would be out of a job like too many of our neighbors in rural Northwest communities. This spill, which helps increase salmon survival, would not have happened at the level of past years without leadership from the State of Oregon and the Nez Perce Tribe, and the history of court oversight.”
The fishing groups called on federal agencies to take the next needed step, by making spill a permanent, guaranteed part of the federal salmon plan and by increasing the amount of spill wherever possible. Right now the federal plan curtails spill from court-ordered levels of the past.
“We are thankful that the Nez Perce and Oregon stood up to federal pressure to reduce water spilled past the dams to protect salmon,” said Liz Hamilton of the Northwest Sportfishing Industry Association. “What we’ve learned in the last five years is that more spill means more salmon, which means more jobs.”