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Oregon U.S. District Court Affirms Spill For Fish Plan; Final Decision Still With Appeals Court
Posted on Friday, January 12, 2018 (PST)

An Oregon U.S. District Court judge has formally accepted a court-ordered spill plan developed and filed by federal agencies, states and environmentalists.

 

The plan -- which lays out in detail how the agencies can safely provide more spill at eight Snake and Columbia river dams to aid juvenile salmon and steelhead migrating downstream in the spring -- was submitted to the court late last year.

 

However, the spill plan still may not go into effect this year.

 

Federal agencies in June 2017 appealed the District Court’s April 3, 2017 injunction ordering them to provide more spring spill to a federal appeals court. That court has promised to expedite its decision.

 

The one-year spill plan describing how to safely and responsibly spill without unintended consequences to total dissolved gas levels allowed by the states of Washington and Oregon clean water regulations at each of the dams was delivered to the District Court Dec. 8.

 

Judge Michael H. Simon affirmed the spill plan in a Monday, January 8 order. It provides additional spill this spring along with earlier PIT-tag monitoring of juvenile salmon. He ordered the additional spill at the eight dams beginning April 3, and the monitoring to begin March 1, one month earlier than the timing called for by NOAA Fisheries’ 2014 biological opinion of the federal Columbia River power system. The monitoring will be at three of the dams – Little Goose on the Snake River, and John Day and Bonneville on the Columbia River.

 

Also on Jan. 8, Simon denied a second motion by intervenor-defendant Columbia-Snake River Irrigators Association for an evidentiary hearing on spill and transportation. CSRIA had previously moved in court for the hearing, which Simon had denied because he considered it a motion for reconsideration of his April 3, 2017 spill order.

 

The request for injunctive relief for more spill was enjoined with the earlier case argued in Simon’s court that resulted in a May 2016 remand of the federal Columbia River power system biological opinion for salmon and steelhead listed under the Endangered Species Act.

 

The spill plea was brought to Simon in January 2017 by the National Wildlife Federation 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, 2017 and to continue for each year of the BiOp remand.

 

Simon agreed that more spring spill would benefit ESA-listed fish, but delayed the action until 2018 while federal agencies completed a spill plan for lower Snake and Columbia river dams.

 

The spring spill plan that describes dam operations when spilling to the gas cap was jointly submitted to the court by the plaintiffs and the defendants, the U.S. Army Corps of Engineers, NOAA Fisheries and the Bureau of Reclamation.

 

“This order for additional spill in 2018 is a near-term life-line for our region’s endangered wild salmon and steelhead until we have a legally valid, science-based plan in place,” said Joseph Bogaard, executive director of Save Our Wild Salmon. “This order gives our fish and the communities that rely on them some breathing room in 2018 while our region comes together on a long-term plan that improves the health of these rivers and recovers our struggling fish populations.”

 

However, even as they were developing the plan, federal agencies were appealing Simon’s spill decision to the Ninth Circuit Court of Appeals. In their October 26 opening brief in the appeals court, the federal agencies said that Simon had not considered the complexity or cost of adding more spill, that additional spill is not necessary to avoid irreparable harm to species listed under the federal Endangered Species Act, and that he had misused the injunction process that ordered the spill.

 

The appeals court has agreed to expedite the case, promising a ruling by April 3, the first day of additional spill.

 

In his Jan. 8 order, Simon explained the process of developing the spill plan:

 

“Between May and November 2017, the Regional Implementation Oversight Group (RIOG) charged various technical teams, including the spill operations team, with evaluating and developing recommended spill levels, and aiming to avoid unintended negative consequences at each of the eight lower Snake River and lower Columbia River dams. In October and November 2017, the spill operations team recommended that the RIOG support the technical team’s proposed 2018 Spring Spill Operations. On November 2, 2017, RIOG members were polled and unanimously supported the technical team’s recommendation for a 2018 spring fish passage spill operation that is responsive to the Court’s injunction ruling.”

 

Simon’s order approving the spill plan is at http://www.wildsalmon.org/images/factsheets-and-reports/2018.District.Ct.spill.order.pdf

 

Simon’s order says that the federal defendants may make adaptive management adjustments to the “spring fish passage spill operations” and that they will maximize spill “to the extent feasible in a manner consistent with the state water quality standards for TDG during the 2018 spring fish passage spill period.”

 

After periods when spill to the gas cap may not be possible or appears to harm migrating juvenile salmon and steelhead, if that occurs; he said that the federal defendants “will aim to restore planned fish passage spill operations as soon as practicable after the condition or unintended biological consequence requiring adjustment to planned operations is addressed.” The court requires the defendants to file monthly reports with the variances.

 

In addition, he said, “Unless modified or vacated by this Court or modified or vacated by the U.S. Court of Appeals for the Ninth Circuit, the Corps shall commence PIT-tag monitoring at Little Goose Dam, John Day Dam, and Bonneville Dam according to the criteria endorsed by RIOG on October 18, 2017, and as set forth in the Proposed March 2018 Juvenile Bypass System Operations. This paragraph of this Order takes effect on March 1, 2018.”

 

Simon ordered the Corps to initiate the additional gas cap spill at the Lower Snake River dams from April 3 through June 20, and April 10 through June 15 at the lower Columbia River dams.

 

For more detail about the spill plan see CBB, December 15, 2017, “Spill Plan For Juvenile Fish Submitted To District Court, Expedited Appeal Accepted By Ninth Circuit,” http://www.cbbulletin.com/439950.aspx

 

Also see:

 

--CBB, January 5, 2018, “Parties In BiOp Case Hash Over Spill For Fish Details As Final Decision Awaits Appeals Court,” http://www.cbbulletin.com/440011.aspx

 

-- CBB, December 8, 2017, “Briefs Filed In Appeals Court To Expedite Challenge To Increased Spill For Juvenile Salmon, Steelhead,” http://www.cbbulletin.com/439929.aspx

 

--CBB, December 1, 2017, “Judge Floats Idea Of Suspending Work On 2018 BiOp For Salmon/Steelhead Due To Lack Of Completed EIS,” http://www.cbbulletin.com/439901.aspx

 

-- CBB, Nov. 3, 2017, “Federal Agencies Update Court On NEPA, EIS Process For Columbia/Snake Salmon, Steelhead” http://www.cbbulletin.com/439818.aspx

 

--CBB, December 1, 2017, “Judge Denies Irrigators’ Motion For Hearing On 2015 Spill/Transportation, Spread The Risk,” http://www.cbbulletin.com/439900.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, 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.aspx

 

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