Bill Would Void Court
by Greg Moore
Congressmen want to reassert authority over dam operations
Legislation being considered by the U.S. House of Representatives would nullify two federal court rulings regarding the operation of dams on the Columbia and Snake rivers to benefit endangered salmon and steelhead, some of which swim upstream for 900 miles from the ocean to spawn in the upper Salmon River and Redfish Lake.
In May 2016, the U.S. District Court for the District of Oregon invalidated the federal government's operations plan for 14 dams in the Columbia Basin. Judge Michael Simon ruled that the 2014 Columbia Basin salmon biological opinion, drawn up by NOAA Fisheries, violated the Endangered Species Act and the National Environmental Policy Act. The judge ordered a new biological opinion and full NEPA analysis, adding that he doubted such a document could be written without considering removal of eight dams on the lower Snake River in Washington.
Federal courts have declared five successive Columbia Basin salmon plans, dating to 2003, to be illegal.
In March 2017, Simon also ruled that starting in 2018, federal dam operators must increase spring water releases over spillways at the eight dams to improve survival rates for juvenile salmon migrating to the ocean.
HR 3144, a bill co-sponsored by a bipartisan group of five Oregon and Washington representatives, would override those rulings by ordering that the dams be operated according to the 2014 plan until at least Sept. 30, 2022.
"The U.S. District Court required federal agencies in charge of the Columbia-Snake hydro system to consider new alternatives in a publicly involved process that is already underway," said Zack Waterman, director of the Idaho Sierra Club. "If this bill passes, it would undermine the judiciary, halt this public process and prevent federal agencies from even considering alternatives to the failing status quo."
A hearing on the bill was held last Thursday before the House Natural Resources Committee's Subcommittee on Water, Power and Oceans. The legislation, said subcommittee Chairman Doug Lamborn, R-Colo., "looks to provide certainty and reliability to a hydropower system thrust into a state of legal purgatory."
"The choice doesn't have to be between dams and fish -- both can prosper in harmony," Lamborn said.
Three witnesses testifying in the bill's favor cited a need to end litigation that they said is increasing the cost of power in a system that's working to bring back endangered fish populations. The one opposing witness noted the economic benefits that could be achieved by an expanded sport-fishing industry if anadromous fish were fully recovered.
Alan Mikkelsen, acting commissioner of the Bureau of Reclamation, said that since the early 1990s, the biological opinions have been the subject of continuous litigation, and meeting the resulting court orders "puts a strain on our operations of the system."
Beth Looney, president of Portland, Ore.,-based PNGC Power, a nonprofit electric coop, said that in fiscal 2016, fish- and wildlife-related costs of the Bonneville Power Administration's hydro system were $622 million, one-third the total costs of operation. She said the BPA passes along all its costs to power customers. Looney said she expects the 2018 spill "experiment" ordered by Simon to cost $40 million, requiring a 2 percent increase to BPA customers, on top of a 5.4 percent increase two weeks ago and a 30 percent increase over the past few years.
"My rural customers cannot dig any deeper," she said. "They are already just getting by. Even more concerning than the recent large rate increases is the potential for more rate increases."
Looney said that if electricity gets too expensive, BPA's customers will choose other sources of power, leaving it without enough money to cover its costs -- "costs that include the fish and wildlife program."
In an interview, Kevin Lewis, executive director of Boise-based conservation group Idaho Rivers United, said much of the mitigation costs are due to losses of fish at the four Snake River dams.
"If those dams go away, the cost of mitigation goes down and the price of power goes down," he said.
Lewis also said there is a 15 percent surplus in electricity available in the Northwest, and the dams could be removed without causing a shortage.
However, HR 3144 sponsor Rep. Cathy McMorris Rogers, R-Wash., said at the hearing that the Snake River dams are "crucial to meeting BPA's peak loads during the hottest days of the summer."
Jack Heffling, president of the United Power Trades Organization, a union for Northwest hydropower workers, said that three nuclear, six coal-fired or 14 gas-fired power plants would be required to replace the dams' peaking capacity.
"That's what the main function of these dams are -- peak power," Heffling said.
Heffling said studies have shown that survival of fish migrating through the lower Snake dams is equal to or higher than survival rates of fish in rivers without dams, and that fish that are barged survive at five times the rate of fish that are not barged.
"This information strongly contradicts any claims by environmental groups that the removal of the dams is necessary for fish to survive and that barging juvenile fish through the dams is ineffective," he said.
Heffling also said additional spill would force fish through passages not designed for them and create more saturation of nitrogen in the water, resulting in gas bubble problems in the fish.
"Even if there was some kind of order to increase spill, it couldn't be done without being incredibly dangerous to the fish," he said.
In an interview, Idaho Rivers United Communications Director Greg Stahl acknowledged that there is a limit to the volume of water that can be spilled without putting too much nitrogen in the water, but he said "we're not there yet, according to the scientists."
At the hearing, Rep. Rogers noted that juvenile fish migrating downstream pass through the dams with a 97 percent survival rate.
But conservationists have called that figure misleading. Stahl said the figure applies to each dam, and therefore must be multiplied by eight to include the entire system. In addition, he said, it does not take into account mortality from the slack reservoir water, delayed mortality from the stress of navigating the system and mortality caused by hot weather on impounded and low water.
"Add those together and you have a significantly higher percentage of mortality," he said. "Any useful analysis should focus on spawning bed to spawning bed."
Liz Hamilton, director of the Northwest Sportfishing Industry Association, told the subcommittee that sportfishing sustains 34,500 jobs and generates nearly $4 billion annually.
"If [the bill] becomes law, it will lock in an expensive status quo that has failed salmon, that has failed businesses and rural economies," Hamilton said. "The eight federal dams on the Columbia and Snake rivers inflict tremendous harm on the salmon and steelhead fisheries and for the businesses that depend on this renewable resource. We know the dams and their reservoirs are the salmon's main cause of human-caused mortality."
Hamilton said that since the early 1990s, spill has clearly helped returns. Between 2005 and 2012, with new spill, she said, the fall Chinook run tripled.
"The evidence was indisputable that spill works," she said.
However, Hamilton said, spring Chinook are "in deep decline."
She said each fish is worth about $900 spent by fishermen.
"These fish are worth their weight in gold, sending money to rural communities from Astoria, Ore., to Riggins, Idaho," she said.
At the end of the hearing, Rep. Lamborn asked Heffling whether he thought conservationists' arguments in favor of additional mitigation measures are reasonable, or do some people have ulterior motives? Heffling said he had talked to and heard testimony from environmental groups just made up of attorneys who earn their living suing the federal government.
"I believe that's all there is left on tearing down these Snake River dams," he said. "It's already been proven that the fish and the dams can coexist."
"It seems to me that that's an abuse of the Endangered Species Act and it's for an ulterior and hidden motive," he said.
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