After being turned down earlier by the Washington Department of Ecology and in state Superior Court, a coalition of fishing and salmon conservation groups on Wednesday requested that a state appeals court require the easing of a state water quality standard so more water can be spilled for salmon passage at mainstem Columbia-Snake hydro projects.
The state agency says that allowing more spill would benefit migrating salmon and steelhead but would raise “total dissolved gas” to levels that harm other aquatic organisms that spend time near the river surface.
The Northwest Sportfishing Industry Association, Association of Northwest Steelheaders, Pacific Federation of Fishermen’s Associations, Institute for Northwest Steelheaders and Idaho Rivers United say that the benefits to salmon far outweigh what are negligible negative effects on other organisms.
The coalition on March 8, 2010, submitted what was its third petition asking WDOE either to remove its 115 percent forebay TDG cap or “in the alternative, to bring the forebay standard in line with the tailrace standard of 120 percent.” The states of Oregon and Washington are both charged by the federal government with setting water quality standards in their jurisdictions. Much of the lower Columbia is the shared border of the two states.
Oregon has in recent years issued waivers to its water quality regulations that allow TDG levels up to 120 percent in both the upstream forebays and the tailraces at dams in its jurisdictions during juvenile salmon outmigrations.
When water becomes supersturated with gas, gas bubbles can form in the blood and tissues of aquatic organisms and ultimately cause physiological problems. The spilling of water over spillways at dams is considered the safest route of passage for juvenile salmon but is a major cause of elevated TDG.
Washington’s waivers have set caps of 120 percent TDG in the tailrace and 115 in the forebay during the salmon migration seasons. Federal dam managers have followed Washington’s more stringent standard.
Two months later the state agency denied the March petition, so on June 2, 2010, the fishing and conservation groups asked the Thurston County Superior Court to declare the WDOE’s decision “arbitrary and capricious” and contrary to state law.
After briefing and oral arguments Judge Lisa L. Sutton on June 13, 2011, issued an order denying the coalition’s petition. She said that “When there is room for two opinions, and the agency acted honestly upon due consideration, the court will not find that an action was arbitrary and capricious, even though the court may believe it to be erroneous. On matters involving complex factual issues, which are technical and within the agency’s expertise, such as the matters presently before the court, the courts are highly deferential to the administrative agency.”
“Based upon the standard of review, the court concludes that Ecology’s denial was not arbitrary or capricious or contrary to the law.
“The court further concludes that the petitioners have not met their burden of proof, and thus, the court denies the relief requested by petitioners.”
“This case seeks to give endangered salmon a significant boost by giving them more of what they need to survive,” Liz Hamilton, Northwest Sportfishing Industry Association executive director, said in a coalition press release announcing the appeal.
“The issue of whether we do more for salmon in the Columbia and Snake rivers is synonymous with whether we’re serious about protecting fishing families. It’s not just about salmon; it’s also about our businesses and all the people they employ because of salmon,” Hamilton said. “The Department of Ecology should not be allowed to ignore mounting science on the benefits of spill for increasing salmon returns.”
Ecology’s refusal to update its standards has failed protected salmon by preventing beneficial water releases over dams on the Columbia and Snake Rivers, the groups say.
“Safe spill is a proven, effective action that will help to ensure there will be sustainable salmon runs for the people and communities that depend on them,” said Glen Spain of Pacific Coast Federation of Fishermen’s Associations.
“The chance to take a single administrative action that could get us up to 9 percent more salmon survival is significant and should be a no-brainer. Ecology’s refusal to make this standard more beneficial to salmon is a missed opportunity,” Spain said.
The coalition says that state and federal research has shown that allowing TDG of up to 120 percent in tailraces, as opposed to 115 percent, would increase outmigrants’ survival by as much as 9 percent.
That assertion is based on analysis provided by the Fish Passage Center through its Comparative Survival Study.
“The CSS analysis predicted that the absolute increase in juvenile yearling Chinook survival from Lower Granite Dam to McNary Dam would range from 0 percent to 4 percent, and 1 percent to 9 percent for steelhead…. The McNary to Bonneville Dam absolute increase in juvenile yearling Chinook survival would range from 0 percent to 5 percent,” according to a 2009 document intended to provides technical decision-making information on forebay total dissolved gas issues.
“Total Dissolved Gas in the Columbia and Snake Rivers” was produced jointly by the WDOE and the Oregon Department of Environmental Quality.
The document also said “There is no way to know the exact impacts on fish survival due to the increase in spill. ODEQ and Ecology used four methods provided by resource management agencies to estimate fish survival due to increased spill. Each method has a high level of uncertainty and controversy.
“With an increased spill of 1-2 percent, each analysis found that there is likely a small, positive effect on Chinook survival percentage (greater than zero but less than 1 percent). Some analyses found the potential for much greater survival (4-9 percent) at the higher spill estimates. One analysis found there might also be small negative effects on Snake River steelhead,” the document says.
The petitioners said that the state agency failed to heed the best available science.
“It’s unfortunate that we’re arguing with Ecology about this when every fisheries manager in the region – including Ecology’s counterpart agency in Oregon – agrees that making the standard more protective is necessary to help endangered salmon,” said Earthjustice attorney Steve Mashuda. “We’re continuing the fight and hope Washington will soon adopt a common-sense, biologically-sound approach to give endangered salmon a better chance of surviving.”
He said that is little evidence of harm to aquatic organisms in data from ongoing monitoring at the dams since 1995 when involuntary spill for fish passage became a part of operations.
WDOE “concluded the small benefit to migrating salmon that would result from the proposed 120 percent TDG relaxation was insufficient to weak the existing rule when weight in light of increased risk or injury to aquatic species. Ecology determined that the weight of all the evidence from available scientific studies clearly points to detrimental effects on aquatic life near the surface when TDG approaches 120 percent,” according to Sutton’s order, which was jointly composed by the parties to the lawsuit based on an oral order issued by the judge one week after oral arguments in May.
“Petitioners clarified that they acknowledge that other aquatic organisms need to be protected, but they asserted that salmon are the most sensitive designated protection. Ecology responded that it has a statutory duty to protect all aquatic organisms,” the judge’s order says.
The groups say that an increase in spill at the dams could also help to avoid the curtailment of wind energy generation in the future, as the Bonneville Power Administration has done this spring in an attempt to diminish over-generation concerns for the power grid. The policy allows, in times of low power demand, wind generation to be replaced with hydro power so that less water has to be spilled at mainstem hydro projects. Flushing water through turbines produces little TDG.
During this year’s high flows there were periods when TDG levels rose well above the 120 percent despite the wind-hydro manipulations.
“Safe spill is a clear winner for both salmon and clean, salmon-friendly wind power,” said Kevin Lewis, conservation director of Idaho Rivers United. “Changing Washington’s standards to better protect salmon would help wind farms sell their power during high water periods and help alleviate some of the wind power cutoffs that Bonneville Power Administration has planned for the future.”
Briefing in the appeal is expected to be completed by the end of the year with a ruling thereafter.