Feds argue against spilling dam water for salmon

SEATTLE – The Bush administration asked a federal appeals court Wednesday to stop water from being purposely spilled over five Northwest hydroelectric dams, and thus overrule a lower court’s order that the release was necessary to help young salmon migrate to the Pacific.

The U.S. Army Corps of Engineers was forced to allow substantial flows to bypass energy generating turbines following a June 20 order by U.S. District Judge James Redden of Portland. Redden ruled that the salmon were imperiled when swimming through those dams’ turbines as they headed to the sea hundreds of miles away.

“What the court has ordered is an untested experiment,” Justice Department attorney Ellen Durkee argued to a three-judge panel of the 9th U.S. Circuit Court of Appeals, which is being asked to overturn Redden. Durkee said Redden is “micromanaging the Columbia power system.”

The appeals court appeared divided on whether it would uphold Redden and did not indicate when it would rule.

The Bonneville Power Administration, which sells the electricity generated by the dams, estimated spilling the water rather than running it through turbines will cost $67 million in lost revenue, which could be saddled on utility customers in the Northwest.

Appeals court Judge Richard Paez said Redden may not have been “micromanaging” and instead properly “determined that the status quo was harmful.”

Judge A. Wallace Tashima, however, suggested that Redden erred by not backing the National Marine Fisheries Service, which found that increasing water flows wasn’t the best method to protect the threatened salmon.

“Why couldn’t the court defer to the actions of the agency?” Tashima asked. “Is it your position that the court owes no deference to the agency?”

Todd True, a lawyer with Earthjustice Legal Defense Fund, replied: “That is correct.”

Tashima quickly retorted that such a position was not supported by previous court decisions.

At the request of salmon advocates, fishermen and Indian tribes, Redden ruled that “As currently operated, I find that the dams strongly contributed to the endangerment of the listed species and irreparable injury will result if changes are not made.” His order began being carried out June 20, and is to last through Aug. 31.

Environmentalists, who initially brought the case, said the government hasn’t been meeting its obligations to protect the threatened salmon and eventually want to close four dams in southeastern Washington.

Redden’s ruling targets Lower Granite, Little Goose, Lower Monumental and Ice Harbor dams on the Snake River in southeastern Washington, and McNary Dam on the Columbia River straddling Oregon and Washington. While each dam kills only a small percentage of fish, more than half the spring-summer chinook run from the Snake River end up being killed as they maneuver through all the dams’ hydroelectric turbines.

Durkee said the administration has a salmon recovery plan in place that is jeopardized by Redden’s ruling. For more than a decade, the government has been diverting fish captured in holding tanks at the dams, where they are then trucked or barged to the Columbia River in Oregon.

She said since the water flows were increased, there have been 90 percent fewer fish transported downstream. “This isn’t the answer,” she said.

True argued that there was no evidence on whether the transported fish are able to migrate upstream, because they may not know the way to the fish ladders that enable them to swim past dams on their return migration up river.

True said Redden “is not a court that jumped in hastily and issued an order,” and his decision should stand.

Redden ordered that about two-thirds of the water that passes the dams go over spillways instead of running through the dams’ electricity generating turbines. That would decrease gradually to about half as river levels dropped.

The Bonneville Power Administration estimated the extra spill will increase wholesale electricity rates by about 4 percent to 5 percent. That would typically amount to an increase of about 2 percent in the rates paid by residential customers, the BPA said.

The case is National Wildlife Federation v. National Marine Fisheries Service, 05-35569.