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Litigants In Salmon BiOp Case Working Together To Develop Court-Ordered Spill-For-Fish Plan In 2018
Posted on Friday, June 23, 2017 (PST)

Federal dam operating agencies and advocates for more spill for fish are making progress on devising a 2018 spill plan at federal dams on the lower Snake and lower Columbia rivers, according to a status review submitted to U.S. District Court of Oregon last week.

 

In an April 3 amended order, District Court Judge Michael H. Simon ordered the opposing sides to work together to create a plan for spill intended to aid juvenile salmon/steelhead passage through the federal hydrosystem and to check in periodically with status reviews and conferences to update the court. The schedule for those reviews were agreed to in May.

 

However, while federal agencies and plaintiffs in the case are working together, the Columbia Snake River Irrigators Association is opposing the 521 page preliminary plan that was submitted to the court June 15 because the joint plan doesn’t account for barging of the juvenile fish during warm water and low flow conditions, such as conditions during the summer of 2015.

 

“Any rational spill program must take account of the extraordinary benefits of smolt transportation in warmer, low-flow years by curtailing spill under such conditions,” according to a separate statement of the CSRIA that it filed with the court on the same day as the federal agencies filed their status review.

 

“We have previously briefed the Court on the disaster in 2015 when the Fish Passage Center resisted NOAA Fisheries efforts to increase transport,” the statement continues. “The results have already been seen in this year’s spring chinook and steelhead returns, which are far below projected levels. Unfortunately, the joint status report confirms that the agencies continue to willfully ignore the adverse survival impacts of increased spill through reduced smolt transportation.”

 

The request for injunctive relief for more spill was enjoined with an earlier case argued in Simon’s court that resulted in a remand in May 2016 of the Columbia River hydropower system’s 2014 biological opinion for salmon and steelhead.

 

The request, which was brought to Simon in January 2017 by the National Wildlife Foundation and the State of Oregon, with the support of the Nez Perce Tribe, asked the court to begin ordering spill to maximum total dissolved gas levels beginning April 3 this year and to continue for each year of the BiOp remand.

 

Simon agreed with the plaintiffs that spill earlier in the year at the dams would benefit Endangered Species Act salmon and steelhead, but held off on ordering that spill until next year, saying it was “too rushed,” giving federal agencies time to plan for operational changes at the dams resulting from the earlier spill schedule.

 

Among other requirements, Simon’s April 3 opinion called for periodic status updates and conferences regarding the spill and planning for the spill.

 

That decision ordering more spill was appealed by the federal agencies and Northwest River Partners in early June to the Ninth Circuit Court of Appeals. However, the appeal is more of a pre-emptive strategy awaiting the outcome of this process to develop study designs and spill protocols for each of the eight dams, according to NOAA Fisheries. In a footnote of the status review, the federal agencies say that they “fully intend to comply with the Court’s direction” spelled out in the April 3 order.

 

(See CBB, June 9, 2017, “Federal Agencies Give Notice Of Possible Appeal Of Court Ruling Providing Earlier Spill For Fish,” http://www.cbbulletin.com/439055.aspx)

 

The process for developing spill protocols at the four lower Snake River dams and the four lower Columbia River dams call on sovereign parties that are a part of the “Regional Implementation Oversight Group” to identify teams of technical people, including representatives from Oregon and from the Nez Perce Tribe. RIOG met May 3 to discuss the technical teams, which the status review says includes:

 

(1) developing recommended spill levels at each of the eight dams that avoid unintended negative consequences;

(2) developing spill patterns for each dam;

(3) addressing PIT-tag monitoring for March 2018;

(4) addressing in-season adaptive management of fish passage spill operations; and

(5) identifying biological monitoring for the 2018 spring fish passage spill season.

 

The spill operations team met May 10, 17 and 30, and on June 5 and is continuing through June to address spill levels.

 

At its last meeting, the team developed an initial assessment of spill levels and potential constraints and other considerations. They had not identified any known biological constraints that would warrant modifying the spill cap (120 percent) at The Dalles, McNary Ice Harbor, Lower Monumental or Lower Granite dams, but there may be biological constraints warranting a modification of the spill cap at Bonneville, John Day and Little Goose dams, the status review says.

 

The spill pattern development team has yet to meet, but still may begin before the end of June to address spill patterns. Its charge is to develop project by project spill pattern tables based on the spring fish passage spill levels identified by the spill operations team.

 

The Operations and Maintenance group met May 11 and June 8 to discuss PIT-tag monitoring planned to begin on March 1, 2018.

 

“RIOG members and the technical teams have made substantive progress in identifying some of the tasks to be accomplished and the schedule for completing some of those Tasks,” the status review concludes. “At this point, however, neither the technical teams nor RIOG members have recommended spill levels or spill patterns at any of the eight lower Snake River and lower Columbia River dams.”

 

Also see:

 

--CBB, May 19, 2017, “Spill Advocates, Federal Agencies Agree To Status Conference Schedule, Protocol In Salmon BiOp Case,” http://www.cbbulletin.com/438950.aspx

 

-- CBB, April 7, 2017, “Court Order Requires Earlier Spill For Salmon In 2018; Orders Design Study, Monitoring,” http://www.cbbulletin.com/438675.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

 

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