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Irrigators Seek Hearing In Federal Court On Spill/Transportation Protocol In Low Water 2015
Posted on Friday, October 06, 2017 (PST)

Irrigators in eastern Washington are blaming fisheries managers for choosing spill over transportation during the spring juvenile migration in 2015, a choice they allege resulted in the loss of 65 percent of the wild spring chinook adults returning to the Snake River this year.

 

They said that other hatchery fish were affected, as well, and that the final numbers of returning adult steelhead will document further losses.

 

“The evidence clearly shows that the Fish Managers ignored the legally required, ESA (Biological Opinion) ‘spread the risk’ policy, in the spring 2015, when they transported only 13 percent of juvenile salmon/steelhead during low flow and high temperature conditions, when young fish are the most vulnerable to the adverse effects of remaining in-river,” the Columbia-Snake Irrigators Association said in a news release.

 

“This was the lowest percent transported since records were first kept in 1993,” they added.

 

To further its argument, last week, September 29, the CSRIA petitioned the U.S. District Court in Portland to convene an evidentiary hearing to air their assertions in court before Judge Michael H. Simon. That information, they said, is not being considered by NOAA Fisheries and the U.S. Army Corps of Engineers as they plan additional court-ordered spill operations at Snake River dams that are to begin in April.

 

CSRIA’s petition is at https://drive.google.com/file/d/0B-xN73ylnN7jMVY3MlgzcnczX28/view

 

The irrigators’ “laundry list of potential unintended consequences of increased spill” includes decreased smolt-to-adult survival rates, decreased annual juvenile survival and increased exposure of juveniles to predators.

 

“Ironically, those are precisely the issues that the juvenile transport program is designed to mitigate and address,” the petition says. “But like the rest of the documents released to date, adverse effects arising from decreased transportation are entirely eliminated from consideration in the process.”

 

Irrigators had previously petitioned in a letter to the Corps and NOAA Fisheries June 2 to formally investigate the 2015 decision to keep juvenile salmon and steelhead, listed under the federal Endangered Species Act, in the river rather than transport the fish downstream to below Bonneville Dam. That letter asked the agencies to seek answers to two questions:

 

--Why did the Army Corps fail to properly implement the long-standing “spread the risk” orders by U.S. District Court, which among other things called for the Army Corps to transport juvenile fish downstream?

 

The agencies instead of spreading the risk opted for more spill, the petition says.

 

--Why did NOAA Fisheries acquiesce to an informal committee of stakeholders called the Fish Passage Advisory Committee (FPAC) and not request, more forcefully, that the Army Corps begin transport to avoid jeopardizing fish runs?

 

The spread the risk policy has been in effect for a couple of decades and was reaffirmed in a 2005 decision by U.S. District Court Judge James Redden when the Corps said it will both spill water at the Lower Snake River dams for juveniles, while it also will transport the fish in barges and trucks “in a relatively equal measure.”

 

Although NOAA Fisheries had requested an early start date for transporting the juveniles in April 2015 due to the lethal conditions building in the river, the requests were rejected by some fisheries managers, claims the June 2 petition. By the time that transportation had begun, some 60 percent of the chinook and 50 percent of the steelhead juveniles had already migrated, the petition said.

 

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.

 

That request for injunctive relief 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. The groups 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 ESA-listed salmon and steelhead, but held off on ordering that spill until 2018, saying it was “too rushed,” giving federal agencies time to plan for operational changes at the dams resulting from the earlier spill schedule.

 

Simon’s 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.

 

Among other requirements, Simon’s opinion on spring spill called for periodic status updates and conferences regarding the spill and planning for the spill. The next status conference is in Portland November 28.

 

CSRIA does not support the process by the federal agencies to design an earlier spill protocol without first considering whether spill is the best route to move juvenile fish. It claimed the process was being conducted by the federal agencies behind closed doors and asked the court in its petition:

 

“Although this court instructed the Federal Defendants to examine carefully the impacts of increased spill on FCRPS operations and salmon survival to ensure compliance with the Endangered Species Act, the Federal Defendants have not done so to date. Instead, they have released a series of preliminary documents that fail to adequately analyze the likely adverse environmental impacts of the new spill regime, and confirm that the Federal Defendants have no intent of assessing adverse effects from reduced transportation.”

 

CSRIA said it is entitled to gather evidence and present it in the court “in an evidentiary hearing before any injunctive relief increasing spill is entered by the Court.” It also asked the court to “open this process to CSRIA and other non-sovereign parties.”

 

In the long run, the CSRIA has previously said that the only practical solution is to invoke a process contained within the ESA statute called the “God Squad,” something the CSRIA did in December when it petitioned the incoming Trump Administration after the presidential election, but prior to President Donald Trump taking office, to begin thinking about the God Squad as a solution to perpetual litigation over ESA-listed fish in the Northwest.

 

Also see:

 

--CBB, July 21, 2017, “Irrigators Petition Corps, NOAA To Investigate River Management Decisions During 2015 Low/Hot Water,” http://www.cbbulletin.com/439311.aspx

 

--CBB, June 23, 2017, “Litigants In Salmon BiOp Case Working Together To Develop Court-Ordered Spill-For-Fish Plan In 2018,” http://www.cbbulletin.com/439147.aspx

 

--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

 

--CBB, April 1, 2016, “Corps Report On 2015 Columbia/Snake Warm Water, Fish Die-Off Will Discuss Actions To Avoid Repeat,” http://www.cbbulletin.com/436358.aspx

 

-- CBB, December 2, 2016, “Irrigators Petition Trump Transition Team For ‘God Squad’ Intervention In Salmon BiOp Remand,” http://www.cbbulletin.com/438042.aspx

 

-- CBB, December 4, 2015, “Post-Mortem 2015 Snake River Sockeye Run; 90 Percent Of Fish Dead Before Reaching Ice Harbor Dam,” http://www.cbbulletin.com/435642.aspx

 

-- CBB, November 6, 2015, “Report Analyzes Impacts, Causes Of This Year’s Warm Fish-Killing Water In Columbia/Snake,” http://www.cbbulletin.com/435505.aspx

 

-- CBB, September 11, 2015, “Snake River Sockeye: Lowest Return Since 2007, Captive Broodstock Program Increases Spawners,” http://www.cbbulletin.com/434944.aspx

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