court order, the operators of eight federal dams on the lower Snake and lower
Columbia rivers will begin to spill water for fish earlier next year, beginning
April 3, to possibly improve survival rates for juvenile salmon and steelhead
through the hydroelectric system.
groups, the state of Oregon and the Nez Perce Tribe asked for the injunctive
relief that resulted in the court-ordered spill in a January 9 filing in U.S.
District Court of Oregon. The request enjoined the same case decided in May
2016 in which Judge Michael H. Simon rejected the 2014 biological opinion for
salmon and steelhead for the Columbia River hydropower system and ordered a new
BiOp be completed by the end of 2017.
released his spill opinion and order March 27, which also requires the U.S.
Army Corps of Engineers to operate bypass and PIT-tag juvenile detection
systems at the dams beginning March 1, 2018 (that now occurs in mid-March to
early April) and for the Corps to provide timely reviews of future capital
investments valued at over $1 million at the dams in order to avoid a
“significant risk of bias in the NEPA process,” according to the order.
However, he refused to stop any spending necessary for the safe operation of
conservation groups asked the court to order the dam operating agencies to
provide the maximum allowable spring spill to a total dissolved gas limit set
by the U.S. Environmental Protection Agency at the four lower Snake River dams
and the four lower Columbia River mainstem dams. Spill will begin one to two
weeks earlier than is currently required.
court-ordered spill will continue until NOAA Fisheries completes its next
biological opinion of the federal Columbia River power system, which is to be
done by court order December 31, 2018.
also ordered the Corps and NOAA Fisheries, two defendants in the court case, to
design a study this year that could be used in 2018 when earlier spill is
initiated that would determine if the additional spill provides benefits for
juvenile salmon passage. In addition, he ordered the Corps to design spill
patterns at the dams to ensure dam and transportation safety.
Simon only provided partial injunctive relief to the plaintiffs, the
conservation groups focused on the additional spill as a win in the case.
we recognize that this relief will not eliminate the harm to salmon and
steelhead from dam operations in the long run, we are encouraged that increased
spring spill will be granted to reduce irreparable harm to juvenile salmon and
steelhead,” said Todd True, Earthjustice attorney.
addition to the state of Oregon and Nez Perce Tribe, Earthjustice is
representing the National Wildlife Federation, Pacific Coast Federation of
Fisheries Associations, Northwest Sportfishing Industry Association, Idaho
Rivers United, and the Northwest Energy Coalition, among other conservation and
groups specifically had asked for 24-hour spring spill to the gas cap limit of
120 percent total dissolved gas to begin April 3 this year and to be maintained
through June 20 at Ice Harbor, Lower Monumental, Little Goose and Lower Granite
dams on the Snake River, and for spill to begin April 10 and end June 15 at
Bonneville, The Dalles, John Day and McNary dams.
in his opening remarks at the March 9 oral argument hearing said he was
inclined to allow the spill, which would have begun this week, April 3, but he
came to understand before the hearing had ended that additional spill should
not be considered without a test to determine its value and designing the test
would require more time, at least until 2018.
CBB, March 10, 2017, “Judge Considering Ordering More Spill For Fish In 2018
With Study Design To Test Benefits,” http://www.cbbulletin.com/438457.aspx)
is about much more than saving fish, said Liz Hamilton, executive director of
the Northwest Sportfishing Industry Association. “Until the federal agencies
are willing to comply with the law, we are glad short-term measures will be in
place to give migrating fish the fighting chance they need. We owe it to
ourselves and future generations to get this right.”
fishing businesses like mine have struggled for years due to low salmon
populations,” said Amy Grondin, a Washington Commercial salmon fisher. “We
can’t wait for years for the federal agencies to get this right.”
one point in his opinion, Simon said that “All parties agree that
previously-ordered spill has generated survival benefits and has been good for
salmon survival” and that the Independent Scientific Advisory Board “concluded
that additional spill had merit and is worth testing.”
Columbia Snake River Irrigators Association objected March 31 to the
characterization that all parties agree, saying in a motion that spill was the
problem in 2015 during an unusually warm year and that transportation should
have started earlier that year. Simon released an amended Opinion and Order the
same day that removed the reference to “All parties….”)
Simon was surprised that “Despite these widespread calls for testing increased
spill, the Federal Defendants do not appear to have crafted any such
noted that much of the opposition to increased spill was not about a concern
that the additional spill would harm salmon, but that the opposition had more
to do with rushing the process. He concluded in his Opinion that there is
“sufficient scientific support for a limited injunction requiring increased
spill to benefit the listed species,” and so ordered spill to begin in 2018
instead of this year.
also recognized the importance of early PIT-tag monitoring, especially “in
light of the tails of the run for diversity and species adaptation” and ordered
PIT tag monitoring beginning March 1, 2018.
plaintiffs had also asked for an injunction to halt the Corps from spending
more money on the dams, pointing out two planned projects costing about $37
million at Ice Harbor Dam, but also asking to halt any new capital projects.
the groups asked to stop 11 capital projects valued at $110 million at the four
lower Snake River dams until the three federal agencies -- the Corps,
Bonneville Power Administration and the Bureau of Reclamation – complete a
National Environmental Policy Act review that could evaluate removing the dams
as an alternative. The Corps operates those dams.
the issues of his rejection of the BiOp last May, Simon said that NOAA and
federal dam operating agencies had not considered all options available to
avoid jeopardy for the 13 species of salmon and steelhead listed under the
Endangered Species Act.
option not considered was breaching the four lower Snake River dams.
in that decision, Simon ordered the federal agencies to conduct a five-year
NEPA review that includes an analysis of dam removal as an alternative. A new
BiOp is to be completed at the end of 2018 and another once the NEPA review is
complete in 2021. Federal agencies have completed the first Scoping step of the
NEPA process, receiving more than 250,000 comments.
issue is whether the Corps could evaluate breaching the dams without being
biased by the amount of money spent on the projects while the NEPA review is in
process. That financial commitment, according to a Ninth circuit court opinion
“can constitute an irreversible and irretrievable commitment of resources” for
purposes of NEPA,” Simon wrote.
weighing the environmental benefits of removing, breaching, or bypassing the
dams, the costs of such actions also likely will be weighed, as well as the
costs of operating the dams,” he continued. He found that “spending hundreds,
tens, or even millions of dollars on the four Lower Snake River Dams during the
NEPA review period is likely to cause irreparable harm by creating a
significant risk of bias in the NEPA process.”
Simon did not stop all capital projects. Some, he found, aided fish, while some
were for safety. The “balance of harms and public interest weighs against the
specific injunction being requested,” he wrote.
he required the federal defendants to disclose enough information about future
projects to plaintiffs. If the plaintiffs then believe a project is not needed,
they can return to the court, he said. He gave the plaintiffs and defendants 14
days to come up with a process on how to do this.
Simon said the “court intends to hold periodic status conferences regarding the
increased spill that must take place in 2018. Within 28 days, the parties shall
confer and file with the Court their joint or separate recommendations for a
schedule of periodic status conferences.
January 19, 2017, “Conservation Groups, Oregon, Nez Perce File To Stop Capital
Projects At Lower Snake River Dams,” http://www.cbbulletin.com/438211.aspx
CBB, January 6, 2017, “Comment Period Extended For Feds’ Scoping On New EIS For
Columbia/Snake River Hydro System,” http://www.cbbulletin.com/438159.aspx
CBB, July 15, 2016, “Judge Gives Feds Nearly Five Years To Complete NEPA
Process For New Basin Salmon/Steelhead Recovery Plan,” http://www.cbbulletin.com/437139.aspx
December 16, 2016, “Scoping Meetings On Basin Salmon/Steelhead EIS End; Next
Step Developing Alternatives For Evaluation,” http://www.cbbulletin.com/438097.aspx
December 2, 2016, “Irrigators Petition Trump Transition Team For ‘God Squad’
Intervention In Salmon BiOp Remand,” http://www.cbbulletin.com/438042.aspx
November 18, 2016, “Hundreds Turn Out For Lewiston Federal Scoping Meeting
Regarding Draft EIS For Snake River Dams,” http://www.cbbulletin.com/437988.aspx
CBB, Oct. 7, 2016, “Agencies Seek Public ‘Scoping’ Comments For EIS Related To
New Basin Salmon/Steelhead Recovery Plan,” http://www.cbbulletin.com/437702.aspx
CBB, May 6, 2016, “Federal Court Again Rejects Columbia Basin Salmon/Steelhead
Recovery Plan; Orders New BiOp By 2018,” http://www.cbbulletin.com/436667