1995 river operations under the Endangered Species Act: continuing the salmon slaughter.

Idaho Rivers United's goal for Columbia Basin salmon and steelhead is the restoration of healthy, self-sustaining, harvestable populations of these fish in Idaho. This is consistent with the overwhelming public opinion in the Northwest, with promises our federal government made to Indian tribes dating back to 1855,(1) and with promises made in federal law since then.(2) Before I address the question of "Who runs the river?," we should look at how the river was run this year. I want to address the question of whether we provided river conditions in 1995 that will lead to restoring healthy, self-sustaining, harvestable populations of salmon.

There are many uncertainties in managing the river, and we must look at the big picture - the total ecosystem approach. However, we do know that the critical limiting factor in the survival of Snake River salmon and steelhead is the operation of the federal hydropower system. There is no doubt whatsoever about it. There is also no doubt about what the salmon need. They need safe passage over eight federal hydropower dams, and they need river conditions that approximate the conditions under which the fish evolved.

Studying the 1995 migration season is important for several reasons. First, 1995 was the last year that we knew with any certainty that we would have large numbers of juvenile fish migrating downstream. Second, 1995 saw 14,000 endangered sockeye salmon smolts ready to migrate, the product of a captive rearing program in Redfish Lake.(3) Third, 1995 was the first year that a revised NMFS biological opinion(4) (revised to remedy the 1993 biological opinion(5) ruled inadequate by Judge Malcolm Marsh),(6) was in effect. Fourth, in 1995 we had the best available water supply in the upper Snake River Basin since 1987, we had nearly normal snowpack, nearly normal precipitation, and in our reservoirs extending back to Jack@ son Hole, Wyoming, we were holding about nine million acre-feet of water. Finally, 1995 was important because implementation of NMFS's biological opinion was supposedly a trial nm of NMFS's recovery plan for Snake River salmon.

The major elements of the 1995 NMFS biological opinion are as follows: 1) attainment of river flow targets;(7) 2) improvement of juvenile salmon travel time down the river;(8) 3) spill at eight federal dams to achieve eighty percent fish passage efficiency, meaning that eighty percent of the fish passing each dam will escape the turbines at that dams;(9) 4) a policy of "spread the risk," meaning that some fish would migrate in-river under improved river conditions, and the remainder put in barges and trucks for transport downriver;(10) and 5) oversight by a Technical Management Team, made up of the managers of the hydropower agencies, plus NMFS and the U.S. Fish and Wildlife Service, making weekly decisions to optimize migration conditions for salmon.(11)

In 1995, over twenty million juvenile fish arrived at Lower Granite Dam.(12) Almost eight and one-half million of those fish were spring/summer chinook salmon and over twelve million of them were steelhead. The remainder were a relative handful of fall chinook and sockeye salmon. Despite a slow runoff, smolt arrivals at Lower Granite Dam began earlier than predicted. The arrivals peaked during the week beginning April 30. However, for the first twenty-five days of the migration season, from April 10 through May 5, the target flow of 95,000 cubic feet per second (cfs)(13) was not met at Lower Granite Dam.(14) So the peak of the spring smolt migration arrived when the flow was not there. For fall chinook, it was worse. The target flow of 52,000 cfs at Lower Granite Dam was not met for the last 41 days of the June 21 to August 31 migration season.(15) Even though the water forecast was good, and even though we had the water in Idaho, the Technical Management Team (TMT) did not provide optimum flows until after the arrival of the majority of spring smolts. In fact, on May 3, nearly one million juvenile fish arrived at Lower Granite Dam without the benefit of spill or target flows.(16) At one time on May 3, we had 98,000 fish arrive at that dam in five minutes; these fish had neither the benefit of the target flow nor the spill. Spills to achieve eighty percent fish passage efficiency were not achieved at any dam at any time during the juvenile migration season, with the sole exception of Ice Harbor Dam. And at Ice Harbor, spill targets were achieved not because of any action by the Technical Management Team or the operating agencies, but because there were two power turbines out of operation.(17)

One reason given for not implementing the spins called for in NMFS's biological opinion is that doing so would produce higher levels of dissolved nitrogen gas in the river than allowed by state water quality standards.(18) However, extensive monitoring of tens of thousands of juvenile salmon showed hardly any fish at all suffering from these high levels of dissolved gas in the river, produced not by controlled spill, but by the U.S. Army Corps of Engineers' (Corps) inability or unwillingness to keep their equipment running.(19) Even where we experienced high gas levels, we had virtually no measurable harm to fish.(20) Nevertheless, in 1996, NMFS apparently will not ask that the gas standard be raised by the states. There will be no adaptive management 

The result of the Technical Management Team's failure to provide target flows or spill to achieve eighty percent passage efficiency is that most of the salmon and steelhead smolts arriving at the lower Snake River dams either went through the power turbines or were loaded on the barges and hauled downriver. Of the 8.3 million spring/summer chinook that arrived at Lower Granite Dam, 5.5 million of them went through at least one set of turbines of at least one dam on their way to the Columbia River.(21) Roughly six million of them were loaded on barges and hauled down the river.(22) Only 1.6 million of the original 8.3 million smolts remained alive in the river by the time the Snake ran into the Columbia, and many of those had been through at least one set of turbines.(23) During the spring migration season, over 1.5 million salmon and steelhead smolts died in the turbines at the four dams on the lower Snake River.(24) Even in this so-called good water year, about eighty percent of the smolts were barged.(25) These results render the "spread-the-risk" element of the 1995 biological opinion a sham.

NMFS now admits publicly that it had no intention of spreading the risk, and that it did not in fact spread the risk.(26) The Technical Management Team was rendered impotent by the Corps's intransigence and NMFS's failure to exercise its authority. In 1995, the Corps made and implemented several river operation decisions outside the Technical Management Team process., these were unilateral decisions completely outside the process and outside the biological opinion.(27) No decision made by the Corps outside the process benefitted migrating salmon. NMFS did nothing to compel the Corps to abide by the process its biological opinion had established.

What conclusions can we draw from the 1995 experience with the NMFS program? How well did it do for salmon in 1995? We conclude the following: the Technical Management Team process lacks the flexibility and authority to effectively implement an adaptive management approach to managing the river in a manner beneficial to migrating salmon. Adaptive management is a ruse; it is simply more management by slogan.

NMFS has proven unable or unwilling to serve in an effective leadership role on the Technical Management Team. The recommendations of state and tribal fishery agencies are routinely ignored by the Technical Management Team, and the states, tribes, and public have no recourse. The 1995 biological opinion does not provide the major overhaul in the operation of the hydropower system, as called for by Judge Marsh. Even in a near-normal water year, "spread the risk" did not occur. Nearly all Snake River fish were barged. Thus, in 1995, "spread the risk" was merely another catchy slogan.

NMFS remains committed to barges. Why we barge juvenile salmon remains a mystery. We have experimented with this technology for twenty-seven years - we have been doing it since 1968 - and the results of barging are indisputable: 1) Snake River coho salmon were declared extinct in 1987;(28) 2) a total of fourteen sockeye salmon returned to Idaho in the past five years;(29) and 3) we have seen two years of consecutive record low returns of wild Snake River spring/summer chinook salmon and three consecutive years of record low returns of wild Snake River steelhead.(30) There is no doubt that barging does not work. Barging has been likened (quite appropriately) to the biological equivalent of the Piltdown Man or cold fusion. There is no uncertainty associated with barging, other than why we should continue doing it. Even in a near-normal water year, managers of the hydropower system were unable or unwilling to provide fish-friendly, in-river migration conditions. Neither the 1995 NMFS biological opinion, nor the NMFS draft recovery plan,(31) nor the Northwest Power Planning Council's 1994 amendments(32) have proven sufficient to compel the operating agencies to change old ways of doing business.

The "reasonable and prudent" alternatives called for in the 1995 NMFS biological opinion(33) are inadequate to avoid jeopardy to the listed salmon, even if implemented. And this year a major portion were not implemented If If 1995 operation of the federal hydrosystem is the indicator, the hydrosystem portion of NMFS's recovery plan is doomed to failure, and the Snake River salmon are doomed to extinction.

In answer to the question posed by the theme of this Colloquium, - "Who runs the river?" - the answer is, exactly the same people who have run it for the past half century - the Bonneville Power Administration and the U.S. Army Corps of Engineers, the same federal agencies that have overseen the destruction of what was once the worlds largest run of anadromous fish. What plan do they use to run the river? Not the Council's program, not NMFS's biological opinion, not the draft recovery plan; rather, the river is still run on the basis of long-term power sale contracts and the Pacific Northwest Coordination Agreement,(34) neither of which considers fish in any meaningful way. It is more broken promises, status quo, and business-as-usual.

The answer to the question of whether we provided salmon with the river conditions needed for restoration in 1995 is an unqualified "no." In terms of the legal and institutional framework, the hydro agencies fudged. They shaved points. They did not maximize in-river migration conditions for the fish. Instead, they minimized disruption of the status quo. Were fish better off in 1995 than they were in previous years? Clearly, the answer is no. Was the river better for fish? No. Most juvenile salmon did not see most of the river. Most of them got from Idaho to the ocean in boats. And I can tell you that the fish would have been a lot better off had they missed the boat.

(1) See, e.g., Treaty Between the United States and the Walla-Walla, Cayuses, and Umatilla Tribes and Bands of Indians in Washington and Oregon Territories, June 9, 1855, 12 Stat. 945, reprinted in 2 Charles Kappler, Indian Affairs: Laws and Treaties 694-98 (1904) (preserving for Tribes the right to take fish at all "usual and accustomed" places). (2) See, eg., Pacific Northwest Electric Power Planning and Conservation Act Northwest Power Act), 16 U.S.C. [sections] 839b(a)(1) (1994) (establishing the Pacific Northwest Power and Conservation Planning Council and prompting establishment of conservation programs). (3) Keith A. Johnson & Jay J. Pravecek, Idaho Dep't of Fish & Game, Research and Recovery of Snake River Sockeye Salmon: Annual Report For April 1994-April 1995, at 22 (Jan. 1996). (4) National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion: Reinitiation of Consultation on 1994-1998 Operation of the Federal Columbia River Power System and Juvenile Transportation Program in 1995 and Future Years (Mar. 1995) [hereinafter 1995 Biological Opinion]. (5) National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion: Federal Columbia River Power System Operations from April 1993 To January 1994 (1993) (6) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994) (7) 1995 Biological Opinion, Supra note 4, at 40, 104. (8) Id. at 38, 95. (9) Id. at 105. (10) Remarks by Will Stelle, Northwest Regional Director, National Marine Fisheries Service, in Boise, Idaho (Mar. 1, 1995) (press conference). (11) 1995 Biological Opinion, supra note 4 at 101-03. (12) Memorandum from Michele DeHart, Fish Passage Center, to Members' Liaison Group, Fish Passage Advisory Committee 9, 30 (Oct 13, 1995) (on file with author) (pertaining to "Summary of 1995 Spring and Summer Juvenile Passage Season"). (13) For the target flows, see 1995 Biological Opinion, supra note 4 at 104-05. (14) Fish Passage Ctr., Weekly Report No. 95-9, at 1, 8 (May 5, 1995); Fish Passage Ctr., Weekly Report No. 95-10, at 7 (May 12, 1995); Fish Passage Ctr., Weekly Report No. 95-6, at 8 Apr. 14, 1995); Fish Passage Ctr, Weekly Report No. 95-7, at 8 (Apr. 21, 1995); Fish Passage Ctr., Weekly Report No. 95-8, at 8 (Apr 28, 1995). (15) Fish Passage Ctr., Weekly Report No. 95-21, at 4 (July 28, 1995); Fish Passage Ctr., Weekly Report No. 95-22, at 4 (Aug. 4, 1995); Fish Passage Ctr., Weekly Report No. 95-23, at 4 (Aug. 11, 1995); Fish Passage Ctr., Weekly Report No. 95-24, at 4 (Aug. 18, 1995); Fish Passage Ctr., Weekly Report No. 95-25, at 4 Aug, 25, 1995); Fish Passage Ctr., Weekly Report No. 95-26, at 1, 3 (Sept. 8, 1995). (16) A Wild Fish Story: They Shoulda Missed the Boat; Status Report on the 1995 Outmigration of Idaho's Wild Salmon, in Idaho Rivers United at i, ii (1995) [hereinafter A Wild Fish Story]. (17) Id. at 5. (18) See Memorandum from Michele DeHart, supra note 12, at 7-8 (discussing granting or denying of waivers from state water quality standards for total dissolved gas. (19) Id. at 20. (20) Id. at 19-20. (21) Id. at 28. (22) Id. (23) Id. (24) A Wild Fish Story, supra note 16, at i. (25) Memorandum from Michele DeHart, supra note 12, at 28. (26) Personal Communication with Will Stelle, Northwest Regional Director, National Marine Fisheries Service, in Seattle, Wash. (Oct. 3, 1995) (meeting of salmon advocates and federal officials. (27) A Wild Fish Story, supra note 16, at 5. (28) 56 Fed. Reg. 29,553 (June 27, 1991). (29) 1995 Biological Opinion, supra note 4, at 18, tbl. 1 (reporting sockeye returns for 1991 to 1994); Keith A. Johnson & Jay J. Pravecek, Idaho Dep't of Fish & Game, Idaho Sockeye Salmon Captive Broodstock and Evaluation: Annual Report (draft 1995) (on file with author) (reporting sockeye returns for 1995). (30) Gregg Mauser, Idaho Dep't of Fish & Game, Columbia River Fish Management Plan; 1996 All-Species Review Summer Steelhead (draft Feb. 1996) (on file with author); Oregon Dep't of Fish & Wildlife & Washington Dep't of Fish & Wildlife, Status Report: Columbia River and Fish Runs and Fisheries 1938-94, at 143, 155 (Aug. 1995); Fish Passage Ctr., Weekly Report No. 95-30, at 10 (Nov. 3, 1995); Memorandum from Fish Passage Advisory Committee to Columbia Basin Fish and Wildlife Authority Liaison Group 1 (Aug. 8, 1994) (on file with author). (31) National Marine Fisheries Serv., U.S. Dep't of Commerce, Proposed Recovery Plan for Snake River Salmon (Mar. 1995). (32) Northwest Power Planning Council, Recommendations to Amend the Anadromous Fish Sections of the Columbia River Basin Fish and Wildlife Program (Aug. 1994). (33) 1995 Biological Opinion, supra note 4, at 91-135. (34) Pacific Northwest Coordination Agreement, Agreement for Coordination of Operations Among Power Systems of the Pacific Northwest, Contract No. 14-02-4822 (1964) (on file with author). The Pacific Northwest Coordination Agreement "establish[es] detailed operating criteria and power exchange principles, allocate[sl downstream benefits, and require[s] annual systemwide planning to optimize hydroelectric production ... By default, the Coordination Agreement is the primary vehicle for planning the coordinated operation of Columbia Basin streamflows." Michael C. Blumm & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 Envtl. L. 657, 704 (1991).