Hydropower challenge could impact irrigators
The federal government’s operation of Northwest hydropower dams is again under attack for allegedly jeopardizing fish, potentially impacting irrigators who rely on the Columbia and Snake rivers.
The most recent “reasonable and prudent alternatives” aimed at mitigating risk to threatened and endangered fish, issued by the National Marine Fisheries Service last year, were challenged as unlawful during a recent court hearing.
Critics of the agency’s plans claim that it’s overly confident about the positive effects of restoring tributaries while downplaying the hazards of hydropower facilities in the main river channels.
“We’re always looking to the future for benefits that haven’t yet materialized,” said Stephanie Parent, an attorney representing the State of Oregon, during oral arguments in Portland on June 23.
The plaintiffs also faulted the federal government for being ambiguous in its goals and time frames for increasing salmon and steelhead populations, which they claim are killed at unsustainable levels as they pass through 14 hydroelectric dams.
These species are still at risk of getting wiped out by a catastrophe even if their numbers have improved due to natural conditions in recent years, according to the plaintiffs, which include tribes and environmentalists.
“A growing species is not the same thing as a recovered species,” said Todd True, attorney for the Earthjustice law firm.
If the case results in further revisions to the hydropower system’s operations, it could affect irrigators on multiple fronts, said Darryl Olsen, board representative of the Columbia-Snake River Irrigators Association, which has been involved in the litigation.
Environmental groups want to reduce water levels in storage reservoirs, arguing this will improve flow rates and thus enhance fish survival, he said.
The federal government has rejected this claim, finding that the main factor in fish survival is temperature, which isn’t affected by lowering reservoir levels, Olsen said.
“Much of our water management has nothing to do with empirical reality,” he said.
Water rights may also be affected by the litigation.
The flow rates in the Columbia and Snake rivers already preclude any new water rights from being assigned, but an eventual ruling could require even greater pressure to leave water in-stream, Olsen said.
Also, any mandate that NMFS revise its plans for the hydropower will also be extremely expensive and effectively raise the costs of electricity for pumping, he said.
The recent court battle is part of an ongoing legal campaign against the hydropower system’s management that stretches back to 2001.
A potentially important difference is that the litigation is now overseen by a new federal judge, Michael Simon.
U.S. District Judge James Redden, who previously presided over the case, repeatedly found the federal government’s operation plans to be inadequate and remanded them for changes.
After recusing himself from the lawsuit, Redden said he believed the government should require the removal of four hydroelectric dams on the Snake river to improve fish passage.
Another contentious point is how much water should be spilled over dams to prevent fish from passing through turbines, with the plaintiffs pressing for increased spills.
During the recent oral arguments, plaintiffs alleged that NMFS set a lenient standard for overcoming the “jeopardy” that hydropower operations impose on fish.
The agency was also faulted for failing to explain how it arrived at certain conclusions about fish survival.
“It’s impossible to follow the train of reasoning,” said True.
The federal government argues that its “jeopardy” analysis complies with the Endangered Species Act, which gives agencies with discretion in determining a species’ chances of survival and recovery.
It also rejected claims that the “reasonable and prudent alternatives” were lacking, arguing that the plaintiffs cannot overrule the agency simply because they favor a different policy.
“The best available science shows that removing tributary habitat constraints through restoration actions is reasonably certain to increase fish abundance and productivity,” NMFS said in a court document.