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Appeals Court Rules In Favor Of More Spill For Juvenile Salmon, Steelhead At Columbia/Snake Dams
Posted on Friday, April 06, 2018 (PST)

A three-judge federal appeals court panel ruled this week in favor of an Oregon U.S. District Court injunction ordering more spill at eight lower Snake and Columbia river dams intended to benefit migrating juvenile salmon and steelhead.

 

The Ninth Circuit Court of Appeals heard oral arguments March 20 in which federal agencies argued that the lower court injunction to provide more spring spill based on total dissolved gas levels was both difficult to achieve and an improper use of an injunction. The panel released its decision April 2.

 

Total dissolved gas limits are intended to protect young fish from gas bubble trauma in the dams’ tailraces during spill.

 

The appeal was heard by Chief Judge Sidney R. Thomas, Senior Circuit Judge A. Wallace Tashima and Circuit Judge Richard A. Paez, and Tashima promised the court would meet the expedited schedule requested by defendants.

 

With the decision, spill began this week at lower Snake River dams and will begin April 10 at lower Columbia River dams.

 

The decision, written by Thomas, says that the federal defendants’ – NOAA Fisheries and the U.S. Army Corps of Engineers, among others – argument that the plaintiffs (National Wildlife Federation and the State of Oregon) call for increased spill “only identified vague and hypothetical survival benefits” is incorrect.

 

“In support of its injunction motion, Oregon presented expert declarations attesting that increased spill would improve juvenile survival and adult returns,” Thomas wrote. “This evidence is not of ‘potential’ or ‘hypothesized’ survival benefits; it includes significant evidence from decades of studies showing that spill volumes higher than those proposed in the 2014 BiOp (biological opinion) will lead to higher survival rates for outmigrating salmonids.”

 

“At best, federal defendants establish uncertainty about the benefits of increased spill, but the existence of scientific uncertainty does not render the district court’s findings clearly erroneous,” Thomas wrote.

 

The Appeals Court decision is at https://earthjustice.org/sites/default/files/files/Ninth%20Circuit%202018%20Spill%20Injunction%20Ruling.pdf.

 

The request for injunctive relief for more spill was enjoined with an earlier case argued in District Court. The initial case, heard by Judge Michael H. Simon, 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 plaintiffs in the original case, the National Wildlife Federation and the State of Oregon, among others, asking the court to begin ordering spill to maximum total dissolved gas levels as set by Oregon and Washington 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 plan is for additional spill only during the spring of 2018 to the total dissolved gas caps set by Oregon and Washington along with earlier PIT-tag monitoring of juvenile salmon.

 

NOAA Fisheries, Northwest RiverPartners, the Kootenai Tribe of Idaho, the states of Idaho and Montana, and the Inland Ports and Navigation Group appealed Simon’s spill injunction in early June 2017.

 

“After more than 20 years of federal failure, salmon are in desperate need of help now,” said Todd True, Earthjustice attorney representing the plaintiffs in the case. “The measures the Court upheld will give salmon a fighting chance while the federal government catches up to the scale and urgency of what the law requires to protect these fish from extinction.”

 

Neither NOAA nor the Department of Justice, which represented the federal defendants, wanted to comment on the Appeals Court decision, but the Bonneville Power Administration said that “this decision creates a new multi-million dollar obligation for the region’s ratepayers.

 

“As we stated in our newly released agency strategic plan, achieving the full scope of BPA’s mission requires a careful balance between sometimes competing objectives. Specifically, we at BPA are committed to delivering on our vast public responsibilities through a commercially successful business. We are analyzing the full financial impacts of this court decision and we will make more information available in the coming weeks.”

 

Liz Hamilton, executive director of the Northwest Sportfishing Industry Association, says the claim of lost power opportunities is a false alarm since the Northwest power grid is often faced with a surplus, especially in the spring months. Fewer fish also has an economic impact on communities and small businesses, she said.

 

“Fewer fish could be a nail in the coffin for more iconic Northwest fishing brands,” Hamilton said. “I know of companies trying to decide whether this is their last year in existence – brands that fishermen would recognize and recommend. We need hope, not more despair. And at the spill level the court required – and that has now been affirmed on appeal – we are going to see larger adult salmon returns.”

 

The Appeals Court process spurred a March16 letter from Washington U.S. Reps. Dan Newhouse, Cathy McMorris Rodgers and Jaime Herrera Beutler urging the state’s U.S. Sens. Patty Murray and Maria Cantwell to join them in the appropriations process to place a pause on the court-mandated spill order.

 

“We implore you as Washington’s U.S. Senators to assist our efforts to place a pause on the impending spill order mandated to begin April 3, 2018 at the eight lower Snake River and lower Columbia River dams,” the representatives wrote in the letter (https://newhouse.house.gov/sites/newhouse.house.gov/files/03%2016%202018%20NewhouseMcMorris%20RodgersHerreraBeutlertoMurrayCantwell.pdf).

 

“We are very concerned by the unintended consequences this forced spill order could have on our shared constituents, as well as the rest of the Pacific Northwest,” saying that BPA, the Corps and the Bureau of Reclamation estimate the cost of the spill at $40 million.

 

“As you well know, over 70 percent of Washington’s electricity comes from clean, renewable hydropower—the impact on our power system will not only affect our Districts, but rather all of Pacific Northwest ratepayers,” they wrote.

 

The representatives are sponsoring H.R. 3144 that was introduced last June. It would prohibit removing the four lower Snake River dams without congressional approval, and it would approve the 2014 Federal Columbia River Power System biological opinion for salmon and steelhead, including its spill levels, until 2022. By court order federal agencies are currently working to complete a new BiOp by 2018.

 

The bill is also sponsored by Kurt Schrader (D-OR) and Greg Walden (R-OR).

 

Following the appeals court ruling McMorris Rodgers said H.R. 3144 “would be coming up for a vote in the U.S. House of Representatives in the coming weeks.

 

“Hydropower helped build the Northwest, and still today it offers us clean, renewable, reliable, and affordable energy to help power our homes, businesses, and communities. I’m proud to announce that my bipartisan legislation to protect our dams will come before the House of Representatives in the coming weeks to be voted on and sent to the Senate. My goal is to ensure that dams and fish can co-exist, and this Biological Opinion provides a collaborative approach so we can continue to improve technology and fish recovery efforts, while supporting the clean energy produced on our dams. I’m proud to lead this effort along with the support of organizations and people all across Eastern Washington.”

 

(See CBB, October 20, 2017, “New House Bill Would Move Anadromous Fish ESA Listings From Commerce Dept. To Interior,” http://www.cbbulletin.com/439744.aspx)

 

The Corps said it began implementing the additional spill up to TDG limits this week at Snake River dams.

 

"The Corps has been tasked with increasing spill up to the limits of state water quality standards," said Julie Ammann, chief of the Reservoir Control Center for the Corps’ Northwestern Division. “We will use our expertise and best professional judgment to implement this operation and maximize spill up to the state limits. There are many factors that influence total dissolved gas, so managing spill at all our lower Snake and lower Columbia River dams will be challenging.

 

“The Corps has been working collaboratively with the region for the past year to prepare for this new spill operation,” Ammann continued. “Since this voluntary spill operation has not been implemented before, the Corps will closely monitor the system and respond as necessary if we see any unintended consequences."

 

Also see:

 

--CBB, March 23, 2018, “Ninth Circuit Hears Arguments On More Spill For Juvenile Salmon/Steelhead At Columbia/Snake Dams,” http://www.cbbulletin.com/440399.aspx

 

--CBB, January 26, 2018, “Salmon BiOp Challengers Argue New 2018 BiOp Due End Of Year Would Be Illegal Without EIS Foundation,” http://www.cbbulletin.com/440137.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, 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

 

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