The need for a smolt travel time objective in the Columbia River Basin fish and wildlife program to protect and restore the Northwest's imperiled salmon runs.

I. INTRODUCTION

The Columbia River Basin once produced the greatest salmon runs on earth. The average annual run historically ranged between 10 and 16 million fish.(1) Salmon returning to the Columbia traveled upstream nearly one thousand miles to spawn in Idaho waters a full mile above sea level. But this awesome yearly migration no longer sustains the native peoples of the region, or defines the character of the Northwest. It is a mere memory. Now several of the once magnificent Idaho salmon runs teeter on the brink of extinction.(2)

Several factors have contributed to the demise of the Columbia Basin salmon. Overharvesting, habitat degradation from logging and mining, and irrigation withdrawals are partly responsible.(3) However, the most lethal mechanism affecting the salmon continues to be the hydroelectric system operating on the Columbia and Snake Rivers. This system has been blamed for a full fifty percent of the reduction in the run size.(4) The dams have changed the Columbia and Snake Rivers from free-flowing waterways to a series of deep reservoirs. Hydroelectric development in the Columbia Basin inundated spawning areas, altered water temperature and chemistry, and produced abundant predators. The construction and operation of the hydroelectric system have made the Columbia and Snake Rivers a hostile environment for anadromous fish.(5)

Recognition of the dire status of the Columbia Basin's salmon runs is not a recent event. The National Marine Fisheries Service and U.S. Fish and Wildlife Service considered listing Columbia Basin salmon for protection under the Endangered Species Act(6) as early as 1978.(7) During the biological status review conducted by the agencies, one of the factors identified as a cause for the decline of the salmon populations was the "inadequacy of existing regulatory mechanisms"(8) to remedy the impacts that hydrosystem development and operation had on the Basin's salmon runs.(9) However, before the agencies' status review concluded, Congress passed the Northwest Power Planning and Conservation Act,(10) which created the Northwest Power Planning Council,(11) and directed it to develop a program to "protect, mitigate, and enhance" the fish and wildlife resources of the Columbia Basin. Believing that the newly mandated fish and wildlife program targeted the particular problems affecting Columbia Basin salmon, and recognizing that the ESA is a law of last resort, the agencies suspended the ESA listing process.(12)

The hydroelectric system has always been operated by federal agencies(13) to maximize power production and profit.(14) This is so even though Congress has repeatedly directed the agencies to consider and minimize the effects of the hydrosystem operation on anadromous fish.(15) Agency resistance to change(16) and the prospect that certain anadromous stocks would be listed as threatened or endangered were major reasons Congress passed the Northwest Power Act.(17) The Northwest Power Act, through its fish and wildlife program, aimed to put fish on an equal footing(18) with hydropower in the Columbia Basin. Unfortunately, thirteen years later, several Snake River salmon stocks have been listed as threatened or endangered under the Endangered Species Act,(19) the Council's program has proved to be biologically inadequate, and equality for the salmon in hydrosystem operations is yet to be achieved.

The greatest shortcoming of the Council's fish and wildlife program is its failure to call for the hydroelectric operators to provide sufficient river flows to propel smolts downriver to the ocean within biologically dictated deadlines. Presently, the smolts languish in the still reservoirs, where an enormous population of predators encouraged by the hydrosystem backwaters preys on them.(20) The smolts also die from diseases fostered by the artificial reservoir environment,(21) and because of the time it takes to reach the estuary they simply lose the urge to migrate.(22) The journey to the ocean that once took 22 days can now take up to 50.(23) Every day spent in this hostile environment compounds the mortalities, and reduces the number of adult fish that will return to perpetuate the species.

Even though nearly every fishery management agency with jurisdiction over Columbia Basin fisheries recommended establishing smolt travel time objectives in the fish and wildlife program,(24) the Council refused to do so in its 1991 program amendments.(25) Ignoring sound biology,(26) the Council refused to incorporate biologically justified travel time objectives as recommended by the fishery managers, claiming a "lack of consensus" on the relationship between increased flow velocities and decreased smolt travel times.(27)

Given the virtual unanimity among fishery management agencies, it appears that the Council is seeking a consensus among the expert fishery management agencies and other non-fishery interests on the biological merit of including a travel time objective.(28) Such a requirement violates the Northwest Power Act's substantive mandates to "complement" the activities of the fishery management agencies, give "due weight to the recommendations, expertise and legal rights and responsibilities" of the fishery management agencies, and to take action on the basis of the "best available scientific knowledge."(29)

This paper calls for the Council to defer to the biological expertise of regional fishery experts, as required by the Act,(30) and to adopt smolt travel time objectives. Section II discusses the Northwest Power Act, its call to put salmon on equal footing with hydropower, and its directive to the Council to construct a biologically justified basin-wide salmon restoration program. Section III reviews the Council's performance under the Act, focusing on the flow/travel time issue. Section IV discusses the regional fishery agency and tribal recommendations for increased flows to reduce travel times, and especially the recommendation to include travel time objectives in the 1991 program amendments. Section V examines the Council's refusal to incorporate the fishery managers' recommendations, arguing that its refusal violates the Northwest Power Act. Section VI concludes that the Council must incorporate travel time objectives to comply with the Northwest Power Act and, most importantly, to save the threatened and endangered and other salmon runs of the Columbia Basin, especially those of the Snake River in danger of extinction.

III. THE NORTHWEST POWER ACT & THE FISH AND WILDLIFE PROGRAM: NO MORE SECONDARY STATUS FOR COLUMBIA BASIN SALMON

In 1980, Congress enacted the Pacific Northwest Power Planning and Conservation Act.(31) Congress recognized the "history, problems, and opportunities" presented by development in the Columbia Basin, and called for prompt development of "a program to protect, mitigate and enhance [its] fish and wildlife" resources.(32) The Act demanded "equitable treatment for ... fish and wildlife [on par] with the other purposes for which [the hydrosystem] is operated."(33)

A. The Northwest Power Act

One of the purposes of the Northwest Power Act is to "protect, mitigate, and enhance the fish and wildlife ... of the Columbia River and its tributaries, particularly anadromous fish which are of significant importance to the social and economic well-being of the Pacific Northwest and the Nation .... "(34) The Act directs the Administrator of the Bonneville Power Administration (BPA) and other federal agencies responsible for managing, operating, and regulating the hydrosystem to exercise their responsibilities in a manner that provides "equitable treatment" for fish and wildlife.(35) The legislative history of the Act clearly states that this requirement is meant to elevate fisheries protection to the status given hydropower generation. The "equitable treatment" mandate of the Act(36) aims to "place fish and wildlife on a par with ... other purposes and provide a means by which [the agencies] will act to protect, mitigate, and enhance fish and wildlife."(37) Congressman Dingell stated: "It is clearly intended that no longer will fish and wildlife be given a secondary status by the Bonneville Power Administration or other Federal agencies."(38)

The provisions of the Act that expressly contemplate lost power revenue at the expense of fisheries offer additional proof that Ashery protection, mitigation, and enhancement is to enjoy equal status with power production. The Act provides that "[m]onetary costs and electric power losses resulting from the implementation of the [fish and wildlife] program shall be allocated by the [BPA] Administrator. . . ."(39) Similarly, if federal agencies impose conditions on non-federal dams, "the resulting monetary costs and power losses shall be borne by the Administrator . . . "(40) Legislative history related to these provisions indicates that "[s]ome power losses, with resultant loss in revenues, may be inevitable at times if fish and wildlife objectives are to be achieved.(41) The Act's provisions and legislative history show that Congress recognized that the federal manager's operation of the Columbia Basin hydrosystem unacceptably damaged the Basin's fish and wildlife resources; from the very genesis of the Act, Congress envisioned lost power and lost revenue as a necessary consequences

of restoring the Basin's salmon resources. Such statements indicate Congress recognized that significant changes in hydrosystem operation were required.

B. The Columbia Basin Fish and Wildlife Program

The Northwest Power Planning Council was envisioned as a means to put anadromous fish protection, enhancement, and mitigation on a par with power generation in the Basin.(42) Because Congress understood that the Council would not possess fish and wildlife management expertise, it directed the Council to request program recommendations from the region's state fish and wildlife agencies and Indian tribes.(43) Congress instructed the Council to include protection measures in the program "based on and supported by the best available scientific knowledge."(44) Program measures must also "complement the existing and future activities of the Federal and the region's State fish and wildlife agencies and appropriate Indian tribes."(45) Where equally effective measures are available to achieve a "sound biological objective," the Council is to choose the alternative with the lowest cost.(46) Finally, and of crucial importance, Congress required the Council to include measures that will "provide flows of sufficient quality and quantity between such facilities to improve production, migration, and survival of such fish necessary to meet sound biological objectives."(47)

These provisions of the Northwest Power Act provide substantive standards against which to measure the program. They also establish a procedural framework for program formation. Congress ordered the Council to:

(1) set sound biological objectives for the protection, mitigation,

and enhancement of the fisheries;(48) (2) seek recommendations

from regional fish and wildlife agencies and tribes for measures to

meet the sound biological objectives;(49) and (3) where different

measures are equally effective in meeting the objective, choose the

least expensive measure.(50)

In addition to specifying some of the substantive and procedural requirements of program formation, the provisions of section 4(h) establish a fundamental principle of the Act: The Council owes deference to the recommendations and expertise of the region's fish and wildlife managers in formulating the program. As Congressman Dingell, the chief sponsor of the Act's fish and wildlife provisions, stated: "Clearly, the council should rely heavily on the fish and wildlife agencies of the State and Federal governments and not try to become a superfish [sic] and wildlife agency."(151)

Congress anticipated that the Council would not be expert in interpreting and resolving uncertainties in scientific data. With regard to the Act's mandate that program measures must be "based on and supported by the best scientific knowledge available,"(52) legislative history shows that congressional sponsors of the Act intended for the Council to rely on the expertise of the region's fish and wildlife managers:

[I]t is clear that the criterion that the measures be based on, and

supported by, the best available scientific knowledge requires a

certain amount of judgment by the council with the help of the fish

and wildlife agencies in determining whether or not the measures

meet this kind of test.(53)

Moreover, section 4(h)(6)(A) requires program measures to "complement the existing and future activities of the region's federal and state fish and wildlife agencies and Indian tribes." Not only does this provision indicate that Congress intended the Council to respect the expertise of the fishery managers, but also that the Council's program should not interfere with their legal rights and ongoing responsibilities.

Building on the deference principle inherent in the provisions in section 4(h)(6), section 4(h)(7) directs the Council to resolve inconsistencies in recommendations it receives by "giving due weight to the recommendations, expertise, and legal rights and responsibilities" of the fishery managers. If the Council fails to adopt any recommendation of the fishery managers, section 4(h)7 requires the Council to "explain in writing the basis for its finding" that the recommendation is:

1) inconsistent with the purposes of the Act; 2) does not protect,

mitigate, and enhance fish and wildlife while assuring the region an

adequate, efficient, economical, and reliable power supply;(54) 3) inconsistent

with the activities of the region's fishery managers, not

based on the best scientific knowledge, more expensive than an

equally effective measure, or inconsistent with the legal rights of

Indian tribes; or 4) less effective than the adopted recommendations(55)

for the protection, mitigation, and enhancement of fish and

wildlife.(56)

These provisions essentially establish a rebuttable presumption that the Council will adopt the recommendations of the fishery managers.

Besides fisheries managers, the Act enables all interested parties to make program recommendations.(57) In fact, some of the most prolific commenters in the 1991 Fish and Wildlife Program amendment process were not fishery management experts, but rather entities that benefit from operating the hydrosystem to maximize power production at the expense of fisheries protection.(58) Given the disparate interests of the entities making recommendations, Congress recognized that the recommendations of the fishery managers must carry extra weight. Thus, sections 4(h)(2) through 4(h)(7) of the Act do much more than establish an orderly process for program formation, they also direct the Council to defer to the expertise and legal rights and responsibilities of the region's fishery managers,(59) to ensure that public participation in program formation will not become a means to undermine the program's biological integrity.(60)

III. A HISTORY OF THE COUNCIL'S APPROACH TO THE FLOW ISSUE

The Northwest Power Act requires a program that improves flows, uses the best scientific knowledge available, and complements the activities of the fishery managers.(61) The clear intent of these provisions makes the Council's refusal to implement the state and tribal recommendations to include a smolt travel time objective(62) in the program unjustifiable. Twelve years ago, the regional fish and wildlife agencies and tribes recommended increased flows in their original recommendations to the Council.(63) Their most recent unheeded flow recommendation, coupled with travel time objective recommendations, was made in 1991.(64) Rather than include these recommendations in the program, the Council's 1991 amendments promise only that the flow/survival relationship will be further studied.(65) By rejecting the recommendation, the Council has shunned its substantive duty to defer to the regional fishery management entities, and spumed the intent of Congress.(66)

A. The Council's Treatment of the Flow/Travel Time Problem

The Northwest Power Act requires the Council's program to "provide flows of sufficient quality and quantity between such facilities to improve production, migration and survival of such fish as necessary to meet sound biological objectives."(67) Production, migration, and survival improve by reducing smolt travel times.(68) Thus, the biological objective should be to reduce travel times to those achieved by the Columbia Basin salmon stocks when they were able to sustain themselves. The Act requires the program to provide flows toward these ends.(69) Yet, the Council's program has never fulfilled this requirement, and the 1991 amendments did not remedy this inadequacy.

1. Agency and Tribal Recommendations For the Initial Program Concerning the Flow Issue

As required by the Act, the Council requested recommendations from the region's fishery agencies and tribes to formulate its initial program in 1981. The fishery managers responded with over 700 pages of recommendations, 200 pages of which were devoted to the issue of smolt migration and survival.(70) Specifically, the agencies and tribes found that a minimum flow rate of 300 kcfs (thousand cubic feet per second) at The Dalles Darn during the month of May was necessary for optimal smolt survival.(71) However, in an effort to accommodate hydropower considerations, they officially recommended a rate of 220 kcfs at The Dalles.(72) This flow translated into minimum May flows of 85 kcfs at Lower Granite Dam on the Snake River, and 130 kcfs at Priest Rapids Dam on the Columbia.(73) The fishery managers believed that delivery of simultaneous instantaneous flows at these rates would move the smolts through the four Snake and four lower Columbia reservoirs to the estuary in a biologically necessary 30 days.(74) Although the recommendations were for minimum river flows rather than specific travel time objectives, the flow recommendations were clearly linked to a travel time objective of a 30-day juvenile migration through the system.

In addition to the biological recommendations, the region's fishery managers sought to incorporate institutional objectives in the program that would give fishery protection a voice in power planning and hydrosystem management. The agencies and tribes pointed to the failure of prior legislation that left fishery measures in the hands of the hydrosystem operators,(75) and recommended that the agencies and tribes play an active role in hydrosystem planning and program implementation and evaluation.(76) Their institutional recommendations were: 1) to establish a formal process through which the BPA, the Army of Engineers (Corps) and the Bureau of Reclamation would solicit fisheries recommendations prior to significant power planning decisions; 2) to fund fisheries personnel to coordinate fishery interests with power managers, evaluate the implementation of the program, and monitor power system operations; and 3) to encourage coordination between the fisheries personnel and the power managers.(77)

2. The "Water Budget Concept"

The Council adopted its initial Columbia Basin Fish and Wildlife Program on November 15, 1982.(78) The agency and tribal recommendations convinced the Council that there was a biological need to move salmon and steelhead smolts through the Snake and Columbia Rivers as rapidly as possible. To achieve t% goal, the Council directed federal water managers to plan the release of a certain volume of water in the Columbia and Snake Rivers.(79) This water would supplement the water passing through the system for power production purposes. This program measure was called the water budget.(80)

Although the Council accepted the fishery managers' conclusions that flows needed to be increased to aid juvenile salmonid migration, the water budget strategy differed from the fixed flow approach advocated by the fishery managers. The fixed flow approach simply called for maintaining flows in the Snake and Columbia Rivers at a velocity necessary for successful migration. The water budget, on the other hand, was a volume of water to be used to supplement "firm power flows"--water passed through the hydrosystem to generate electricity. The Council chose the volumetric water budget approach over fixed flows because it believed that it would cost less in foregone hydropower revenues, and it would involve the fishery managers in day-to-day hydrosystem operations.(81)

The volume of water allocated to the budget was determined by subtracting the average monthly power flows that would be supplied in the lowest month during the worst three and one-half year drought on record from the firm flows recommended by the fishery managers.(82) The Council further reduced the Snake River portion of the water budget because it did not believe that there was enough water available in the Snake River Basin to provide the recommended flows while assuring that the reservoirs in that basin would refill.(83)

To implement the water budget, the program provided for two water budget managers, one representing the state and federal fishery agencies, and the other representing the Columbia Basin Indian tribes.(84) These representatives and their staff would comprise the Water Budget Center (WBC). Finally, prior to each smolt migration season, the water budget representatives, the Corps, BPA, public utility representatives, and the Bureau of Reclamation were to meet several times and develop a coordinated plan of operation (CPO) for the implementation of the water budget for the upcoming season.(85)

B. The History of the Water Budget and Its Inadequacies

The Council's initial program appeared to accommodate the recommendations and concerns of the region's fishery managers and satisfy the substantive directives of the Act to provide biologically necessary flows, while arguably deferring to the expertise of the fishery managers.(86) As required by the Act,(87) the Council appeared to defer to the recommendations of the agencies and tribes, and provided a block of water to aid fish migration and survival. Moreover, control of this water was placed in the hands of regional fishery managers, to be used in a manner that would aid smolt migration without power production potential as a constraint. Indeed, this was a step toward achieving the "co-equal"(88) status intent of the Act, as well as ensuring that the program complemented regional fishery management programs, as the Act required.(89) Additionally, the institutional problems in planning system operation seemed to be at least partially resolved by involving fishery managers in a yearly water budget implementation planning process. Unfortunately, as it has been implemented the water budget has not fulfilled its promise. If biologically adequate flow conditions and meaningful involvement of the previously disenfranchised regional fishery managers in hydrosystem operation are the measure of success, the water budget has failed.

The first water budget implementation year was 1983. The Corps did not consider 1983 an "official" water budget year because the 1983 plan for hydrosystem operation under the Pacific Northwest Coordination Agreement(90) process by the owners and operators of the hydroelectric system was in place prior to adoption of the Council's program.(91) However, the Corps agreed to treat the 1983 water budget as official to the maximum extent possible.(92) Unfortunately, the tribes and agencies have since had little success in having fisheries protection addressed in the Coordination Agreement power planning process, despite repeated attempts.(93) The fisheries managers have been told essentially that the Coordination Agreement process is for power planning, and consequently is an improper forum for consideration of fishery protection.(94) Excluding the fishery managers from a meaningful role in the power planning process, however, perpetuates the institutional shortcomings sought to be remedied by the Act and the Council's program.

Major problems which surfaced during the first year of the water budget have continued to undermine its effectiveness. The first problem related to how the water budget account would be debited. The Corps wanted to deduct from the water budget volume all of the actual flow in excess of the base.(95) The water budget center (WBC) believed that only the amount of water the agencies and tribes requested in excess of the base flow should be debited to the water budget.(96) This was an important issue, because high natural run-off in combination with other hydrosystem operations often provides flow rates in excess of the flow targets set by the fishery managers.(97) The WBC sought to rely on natural flows when they were adequate for migration, and reserve water budget use for periods when natural flows were insufficient.(98) The WBC recognized that the Corps' accounting method would consume the water budget early in the migration season, leaving nothing to augment low flows resulting from system operation changes or reduced run-off later in the migration period.(99)

The WBC hypothesized that the basis for the Corps' accounting method was the fear that withholding flow requests and relying on flood control-related flows early in the season could frustrate reservoir refill objectives by allowing requests later in the season when reservoirs are low.(100) The existence of this concern was suspected even though the program made water budget delivery a priority over reservoir refill.(101) The accounting controversy foreshadowed the fact that neither the institutional nor the biological problems in system management had been remedied by the water budget system. Hydrosystem managers continued to place other system operations ahead of implementing WBC water requests, and, as illustrated below, there was an insufficient volume of water in the water budget to provide biologically necessary flows.

The legacy of subverting fish flows to other hydrosystem operations is too lengthy to document completely here, but it is well chronicled in the annual reports of the Water Budget Center (now called the Fish Passage Center).(102) Still, a few examples will illustrate how the water budget failed to place fish protection on a par with other hydrosystem operations.

In 1984, the WBC made flow requests to produce fish flows that the fishery managers considered to be the minimum biologically necessary for migration in late May.(103) On several weekends during this peak migration period, and particularly over the Memorial Day weekend, flows dropped far below the 130 kcfs biological minimum at the Priest Rapid control point on the mid-Columbia.(104) This was done apparently to shape flows to take advantage of the secondary energy sales market at the expense of fish flows.(105) The failure to produce the requested flows violated the terms of the program giving fish flows priority over use of water for secondary energy sales.(106)

In the spring of 1985, because of its conservative reservoir refill forecasts at Dworshak, the Corps refused to use system flexibility to augment flows during the migration period in the Snake River, even though the flows dropped to as low as two-thirds of the 85 kcfs that the fishery managers and water budget center recognized as the biologically necessary minimum.(107) In fact, during the 60-day migration, flows were below the 85 kcfs agreed upon by the fishery managers and hydrosystem operators and managers for 22 days.(108) Dworshak Reservoir actually refilled early, then began immediately drafting to sell surplus energy to California.(109)

In 1987, system reservoirs were drawn down drastically for power production purposes.(110) This left reservoirs extremely low going into the 1988 smolt migration season.(111) This lack of constraint on power marketing strategy caused the system operators to emphasize reservoir refill during the spring of 1988, rather than fish flows as contemplated in the water budget concept.(112) For example, the WBC made a request for water budget use in addition to the base power flows at Dworshak in early May. The Corps did provide the allocation, but undercut its effectiveness when it refused to provide the power base flows to which it had committed in the annual Coordination Agreement power plan, upon which the WBC premised its water budget requests.(113) Despite the request, the Corps stored the water for reservoir refill.(114)

Most recently, during the 1992 migration year, the first year after the 1991 amendments to the Council's program which included provisions for summer flow supplementation, the federal water managers subverted the effectiveness of summer supplementation with a version of the "shell game." The WBC requested storage releases from Dworshak Dam to aid migration throughout the system in July.(115) The water was released, and flows increased in the Snake. However, there was no increase in lower Columbia flows because BPA reduced flows in the Columbia River proportionally.(116) BPA intimated that the program did not explicitly require it to provide flow augmentation in the summer.(117) The result was inadequate fish flows in the lower Columbia downstream from the Snake River.(118)

A complete compilation of instances where power system managers opted to accommodate other system operations at the expense of fish protection could be the basis of an entire article. The implementation of the water budget has not fulfilled the intent of the program or the substantive mandate of the Act to provide biologically adequate flows and to complement the activities of the region's fishery managers.(119)

In addition to its implementation problems, the water budget simply did not provide enough water to consistently produce the biologically necessary minimum flows throughout the Basin. This was particularly true in the Snake River where water storage space is limited.(120) When natural run-off does not provide necessary fish flows, water must be released from either Dworshak, or the Idaho Power Company's (IPC) Brownlee Dam.(121) The year 1987 was the first that runoff forecasts indicated that natural flows would not provide 85 kcfs at the Snake River control point(122)-- the level that the fishery managers consider to be the biological minimum fish flows.(123) The year was also the first that IPC formally committed to participating in the water budget.(124) Therefore, 1987 was the first real test of the adequacy of the Snake River water budget volume, and the water budget proved to be woefully inadequate. The Snake River water budget was exhausted after only eleven days of requested augmentation,(125) and flows were below the minimum necessary on 51 days during the critical migration period.(126) The fishery managers estimated that smolt mortality between McNary and John Day dams increased as much as 50 percent for juvenile steelhead, and 25 percent for juvenile chinook, over 1986 levels.(127)

Similarly, 1988 was forecast as another low runoff year,(128) and the dismal flows during the migration season reinforced the inadequacy of the water budget volume. WBC requests depleted the Snake River water budget in only seven days, and minimum flows were not achieved for any single day during the migration period.(129) The WBC merely stated the obvious when its Annual Report concluded that "the present water budget is not sufficient to protect downstream migrants."(130)

On the Columbia side of the Basin, the ability of the water budget to provide necessary flows has been hampered by the Council's recommended "flow cap" of 140 kcfs at Priest Rapids Dam.(131) The fishery agencies and tribes intended to use the water budget to protect the middle 80 percent of the smolt migration throughout the entire system.(132) This strategy recognized that the juvenile migrants are not "home free" when they pass Lower Granite or Priest Rapids dams, but still must migrate through the four dams on the lower Columbia. The inability of the Snake River to contribute 85 kcfs, combined with the flow cap at Priest Rapids on the Columbia, made the water budget an insufficient mechanism to provide flows of 220 kcfs in the lower Columbia that the fishery managers consider necessary.(133)

C. Artificial Transportation

Though not directly related to the water budget, a discussion of the Council's treatment of the flow/migration issue would not be complete without mentioning artificial smolt transportation. The barging program provides the most striking example of the Council's unwillingness to abide by the Act's mandate to provide improved flows. Started as an experiment, artificial transportation has been a part of the Council's program since its inception in 1981.(134) Transportation involves collecting smolts at several locations in the upper basin, loading them on barges and trucks, and shipping them downstream for release below Bonneville dam.(135) As a substitute for adequate fish flows, this program is inconsistent with the plain language of the Act, which directs the Council to "provide flows of sufficient quality and quantity between such facilities to improve production, migration, and survival of such fish . . . ."(136) Congress clearly provided that migration and survival of anadromous fish was to be improved by providing biologically necessary flows for in-river migration. Transportation does not improve in-river migration, but supplants ft.

Relying on artificial transportation is not only inconsistent with the language of the Act, it is of dubious biological effectiveness. After more than a decade of experimentation,(137) Artificial transportation has not proven to be biologically sound. No study has shown that transported juveniles return as adults to the spawning grounds in greater numbers than do those young fish that labor against the obstacles presented by low stream flows to migrate naturally in river.(138) The dubious effectiveness of transportation became evident recently, when a coalition of the region's state and tribal fishery management agencies opposed artificial transportation for the 1993 smolt out-migration season.(139) These fishery managers opposed artificial transportation in 1993, because it appeared that the forecast natural flows would improve migration. Despite the fishery managers' objections, the Corps went forward with artificial transportation in 1993.

IV. THE 1991 PROGRAM AMENDMENTS: THE COUNCIL'S RESPONSE TO THE ENDANGERED SPECIES ACT LISTINGS

On November 20, 1991, the National Marine Fisheries Service (NMFS) listed the Snake River sockeye as an endangered species.(140) As many as 4,400 sockeye returned every year to Red Fish Lake in Idaho in the 1950s, but by 1990 the run had dwindled to one returning adult.(141) In April 1992, NMFS listed the Snake River fall and spring/summer chinook as threatened species.(142) The total size of these runs had dwindled from approximately 80,000 fish in the late 1960s to about 10,000 in 1992.(143) NMFS identified hydrosystem development and operation in the Columbia River Basin as a primary factor in the decline, stating what was common knowledge among those familiar with the issue.(144) Though the NMFS listing decisions do not explicitly so state, the decisions may well have been a consequence of the inadequate flows in the Council's program.

The listing of these salmon stocks underscored the inadequacy of program's fish protection capabilities. Nearly ten years of program implementation and periodic amendment failed to achieve the Northwest Power Act's and the program's purpose: restoring the Columbia Basin salmon runs. The program was clearly inadequate to restore the basin's endangered salmon runs; thus, the Council sought to amend the program in 1991.

A. The Fishery Coalition Flow Proposal

The 1991 amendments offered an opportunity to remedy the defects in the program, and in particular its failure to provide biologically necessary flows for juvenile migration. Seizing this opportunity, the Columbia Basin Fish and Wildlife Authority (CBFWA), a coalition representing seven state and federal fisheries agencies and thirteen Indian tribes, submitted recommendations for the program to the Council. Significantly, the fishery coalition proposed a comprehensive flow regime to replace the water budget.(145) The proposal called for minimum flows of 300 kcfs at The Dalles Dam on the lower Columbia, and 140 kcfs at Priest Rapids on the mid-Columbia and at Ice Harbor Dam on the Snake River from April 16 through June 15, the critical migration period.(146) These flow levels were nearly identical to those initially recommended as biologically optimal by the fisheries managers in 1981.(147) The original 1981 flow recommendations had been reduced, in a concession to hydropower considerations, to only 220 kcfs at The Dalles Dam.(148) The fisheries coalition's 1991 recommendations were consistent, therefore, with a decade-long conclusion among fisheries experts about what constituted the biologically optimal flows. In addition, the vast majority of the state and federal fishery management agencies and tribes requested that the Council establish specific smolt travel time objectives.(149) Travel time objectives go hand-in-hand with the flow recommendations because they are the biologically necessary goal that improved flow measures are designed to achieve. The adequacy of the recommended flows must be measured by their ability to trigger the biological response sought: reducing travel times from the present three months to something closer to the historic three weeks. Reduced travel time is the goal; increased river velocities are merely the means to achieve it.

B. The Idaho Proposal

The state of Idaho submitted an alternative to the CBFWA flow proposal, submitted by the state of Idaho, which proposed lowering the four Snake River reservoirs to the minimum level required to operate the power system during the migration period.(150) This drawdown strategy would increase the water velocity in the lower Snake river by forcing the water through a narrower channel.(151) The CBFWA determined that a thirty-foot drawdown and accompanying flow rate of 85 kcfs would produce the same travel time for juveniles as would a flow rate of 140 kcfs at full pool.(152) The drawdown's advantage is that less water from storage would be needed to achieve adequate flows. Although Idaho's proposal differs from the CBFWA flow proposal in its means to achieve necessary travel times, the ends are identical: reduced smolt travel time. The drawdown plan's sponsors agreed that the program must contain travel time objectives.(153)

The Council's reception of the fishery managers' proposals can be characterized as lukewarm at best. On the Columbia River, rather than establishing recommended minimum flows at Priest Rapids and The Dalles dams, the Council adhered to its reliance on the water budget concept, although it increased its volume from 3.45 maf (million acre-feet) to 6.45 maf in low flow years.(154) In addition, the Council lifted the 140 kcfs flow cap at Priest Rapids dam.(155) The Council also called for the drawdown of the John Day pool on the lower Columbia from May 1 to August 31 to gain flow benefits similar to those proposed for the Snake River.(156)

On the Snake River, the most notable of the Council's 1991 amendments was a provision establishing a flow equivalent "target" of 85,000 cfs at Lower Granite dam from April 16 through June 15.(157) To achieve this flow target, the Council called for

(1) lowering the four lower mainstem Snake River dams to minimum

operating pool in the spring beginning in 1995, unless interim

studies show drawdowns to be structurally or economically infeasible,

biologically imprudent or inconsistent with the Northwest

Power Act;(158) (2) shifting flood control storage from Snake to Columbia

projects when the runoff forecasts are below average;(159)

(3) using 90,000 acre-feet of uncontracted storage space at Bureau

of Reclamation projects and 110,000 acre-feet of storage at Idaho

Power Company's Brownlee Dam project to store augmentation

water,(160) and (4) emphasizing water efficiency improvements, water

marketing transactions, dry-year option leasing, storage buybacks,

and other measures to secure at least 100,000 acre-feet of

water from the basin.(161) The 1991 amendments also required, for the first time, storage releases to benefit adult and juvenile fall chinook migrating in the summer.(162)

While the 1991 amendments constitute the first significant attempt to improve mainstem flows since the program was established in 1982, by the Council's own admission they are inadequate. Even the Council's Strategy for Salmon conceded that "[t]he immediate measures in this strategy do not appear to be enough, in themselves, to rebuild the salmon runs. . . ."(163) The substantive inadequacies of the amendments are easily identified. First, the Council's recommended flow equivalent target of 85 kcfs on the Snake River is less than two-thirds of the 140 kcfs that the fishery managers believe is necessary.(164) Second, the increased Columbia water budget "aims" to provide 200 kcfs at The Dalles Dam,(165) a flow rate only two-thirds of the amount found necessary.(166) Even with the expanded Columbia water budget, the fishery agencies' recommended flow level of 300 kcfs at The Dalles will not be met in all but extremely high water years.(167) Both the Snake and Columbia River flow goals are nonmandatory "targets."(168) Moreover, the institutional problems that have plagued water budget planning and implementation for a decade were not addressed by the 1991 amendments. The fishery managers have been unsuccessful in ensuring that fisheries protection be considered in the Pacific Northwest Coordination Agreement power planning process, and have even had difficulty getting their recommendations incorporated into the water budget planning coordinated plan of operation process.(169) Finally, the Council refused to set biologically necessary travel times, as recommended by the fishery managers.

V. THE COUNCIL'S REASONING FOR REJECTING THE PROPOSED TRAVEL TIME OBJECTIVES

The Council rejected the CBFWA proposed flow rates because it found that the recommended flows would adversely affect resident fish and wildlife, reservoir refill, and would not assure the region an adequate, efficient, economical, and reliable power supply.(170) This reasoning is a permissible basis for rejecting a recommendation of a fishery management agency or tribe under the Act.(171) However, the Council did not explain in writing the basis for its finding that the power supply would be so affected, as required by the Act.(172) It also appears that the Council made this determination considering only the feasibility of providing these flows in the short term. No study on the feasibility of providing these flows in the long run has been conducted or proposed.(173) This is ironic, because the BPA recently conducted a modeling exercise incorporating new and unproven fishery protection measures projected over the next forty years, then concluded that present hydrosystem operations did not jeopardize the continued existence of the Basin's salmon stocks.(174) The Council's short-term feasibility determinations look hauntingly similar to the rejection of fish protection measures as "unjustifiable" under the Fish and Wildlife Coordination Act in the pre-Northwest Power Act era.(175) Short-term determinations on nonfeasibility by the Council are inappropriate, because Congress enacted the Northwest Power Act to remedy the inadequacy of the Coordination Act and other fishery protection laws.(176)

The Council's rejection of the fishery managers' flow proposal in the 1991 amendments in no way reduced the utility of, or need for, travel time objectives. If flows required to produce necessary travel times are now "infeasible," a travel time objective would nevertheless establish a goal to be achieved by incremental hydrosystem operation changes over time. However, the Council rejected the travel time objective recommendations as well. This recommendation was rejected without any rational explanation, which was a violation of the Act.(177)

The Act provides four separate grounds for rejecting a recommendation of a region's state fish and wildlife agency or Indian tribe. First, the Council may reject a recommendation if it is inconsistent with the purposes of the Act.(178) Second, it may reject a recommendation if including it in the program will jeopardize the region's chance of an adequate, efficient, economical, and reliable power supply, or if the recommendation does not protect, mitigate, and enhance fish and wildlife.(179) Third, the Council may reject the recommendation if it is not consistent with the activities of the region's federal and state fish and wildlife agencies or Indian tribes, is not based on the best available scientific knowledge, is not as economical as an equally effective measure to achieve the same biological objective, or is inconsistent with the legal rights of the region's Indian tribes.(180) Finally if the recommendation is less effective than the adopted recommendations for the protection, mitigation, and enhancement of fish and wildlife, the Council may reject it."' The Council offered none of the four permissible bases for rejecting the travel time objective recommendations. Instead, the Council merely claimed that a "lack of consensus on the issues has hindered conclusion of this debate' on the flow velocity/travel time relationship."' A "lack of consensus" is simply not one of the legal bases for rejecting a recommendation of the region's fishery managers.

In an apparent attempt to reach a consensus, the Council refused to defer to the recommendation of the region's fishery managers and proposed further studies on the matter.(183) The Council's quest for consensus is inappropriate.(184) and violates the Act's directives to complement the existing and future activities of the region's fishery management agencies,(185) and to base program measures on the best available scientific knowledge.(186) The regional fishery managers concluded that increased water velocities reduce travel time and increase smolt survival on the basis of the available scientific knowledge.(187) The Council seems to accept this conclusion and recognizes the biological necessity of reducing travel times.

Dams changed the Columbia and Snake from fast-flowing rivers to a

series of slow-moving reservoirs. Young salmon, whose biology is

attuned to a swift transition from freshwater to saltwater during the

spring and early summer, need to move quickly to the ocean.(188)

The Council's failure to defer to this judgement and to complement the activities of the fishery managers on travel time objectives, coupled with its refusal to accept the available scientific knowledge that increased flows decrease travel times, constitute a violation of the Northwest Power Act.(189)

In addition to violating the substantive provisions of the Act, the Council failed to adhere to the procedural framework that the Act provides for program formation. Section 4(h)(6)(C) requires that the Council shall include in the program measures that "utilize, where equally effective alternative means of achieving the same sound biological objective exist, the alternative with the minimum economic cost."(190) This provision requires the Council to make a threshold determination of each measure's biological effectiveness, and, in some cases, to make a secondary cost determination. In other words, each recommendation must be evaluated for its effectiveness in achieving a biological objective. If one recommendation is more effective than all others, the Council must include it in the program, unless one of the limited bases for rejecting a recommendation applies.(191) In such a situation, no inquiry into the costs of the various measures is permitted by the Act. Only if two or more measures are equally effective is the secondary cost determination made.

The Council received more than 1,500 pages of recommendations during the 1991 amendment process, and many of these addressed travel time.(192) Not all these recommendations were equally effective alternatives for reducing travel time. Without a biologically based travel time objective, the Council could not evaluate the comparative biological effectiveness of the flow recommendations it received.

Not only did the Council's failure to set a biological travel time objective violate the Act's requirement to evaluate alternatives and include the most effective measure in the program,(193) the Council's inaction, by its own admission, makes for an ineffective program.

To be effective, the fish and wildlife program must be more than a

collection of measures. Otherwise, adding measures is like adding

rooms to a house without a floor plan. Individual measures must be

coordinated with each other and integrated into an overall plan

designed to achieve specific goals and objectives.(194)

The absence of a biological travel time objective comprises the biological integrity of the program and violates the directive of the Act that a measure's inclusion in the program be based on its ability to further a biological objective.

The Council apparently recognized the necessity to decrease travel times when it included measures in the 1991 amendments toward that end (the increased water budget volumes, a flow equivalent target and drawdowns).(195) The Council adopted these measures even though it refused to set travel time objectives, giving two reasons for this puzzling inconsistency: concern for the water management system's capability to achieve the objectives,(196) and an unwillingness to debate broad policy issues.(197) First, concerning the system's capabilities, the Council stated: "[We have] not adopted biologically based travel time objectives in this phase of the process .... It is important to understand, however, that the value of objectives such as shorter travel times depends very much on the means that are chosen to achieve the objective."(198) In other words, the ends depend on the means. It thus appears that the Council will set a travel time objective only when it determines just exactly what flow measures the "consensus" will tolerate, and what such flow measures can achieve.

The Council's approach has been to propose measures based upon what the hydrosystem can accommodate in the way of fisheries protection, rather than to determine what fish need and make system changes to provide it. This is evident in the Council's program performance standards in the 1991 amendment process: the performance standard for Snake River spring migrants incorporates the program's flow measures into firm power planning;(199) the standard for Columbia River spring migrants adds 3 million acre-feet of water to the water budget only under certain conditions.(200)

The Columbia River Inter-Tribal Fish Commission, an entity that represents four tribes that have reserved rights to harvest Columbia Basin fish, contended that the performance standards "appear to be based more on the capability of the water management system than the needs of the fish."(201) The Council essentially admitted this, responding that it had "proposed performance standards that it believed could be achieved in 1992."(202) The Council also claimed that because the Council expects standards to be achievable, the standards were geared to the capability of the hydropower facilities as view as the needs of the fish."(203) The Council's approach appears to view success as simply implementing the program measures without regard to restoring the fish.(204)

Second, the Council demonstrated that politics rather than biology now guides program formation. The Council declined to debate broad policy issues such as biological objectives" for rebuilding the salmon runs, including the relative improvements needed in each phase of the salmon life cycle.(205) Though biological objectives must arguably incorporate policy concerns, such objections are first and foremost an expression of the biological responses required to restore the salmon. The Council itself has identified biological objectives as an element of the program's framework that 'state the amount of change needed in major program areas. . . ."(206) Expanding on this, the Council stated that " [a]s proposed, biological objectives would have identified the biological changes needed at each stage of the salmon life cycle."(207) Thus defined, biological objectives are the fundamental building blocks of a program to restore the basin's salmon runs. The Council itself has expressly recognized that the need to reduce travel times is a biological, not a political issue: "Before the dams were built, the journey to the sea was a quick one, lasting a week or less. With the dams, the salmon are often stalled in reservoirs. The hazard here is a biological one."(208)

The "policy issue" debate referred to by the Council really boils down to a question of economics. It is the "policy" of power interests to maximize power revenues, the "policy" of irrigators to use water and cheap electricity for agriculture, and so on. Cutting away the double-speak, the "policy debate" is simply a question of how much revenue must be foregone by those who use the water of the Columbia Basin for profit if the salmon are to be restored. Congress, however, established the side-boards for such "policy debates," and mandated that biological considerations take priority over economic considerations when setting biological objectives, so long as an 'adequate, efficient, economical, and reliable power supply is available to the region."(209)

Finally, failing to establish biologically sound travel time objectives is contrary to the Council's adaptive management policy.(210) The Council's consensus management approach entails pursuing a course of action until political pressure or lack of consensus reaches a breaking point, at which time the course of action is adjusted or stopped.(211) With consensus management, the external pressure and the lowest common denominator define the goal.(212) The conceptual framework of adaptive management is drastically different from that of consensus management. The emphasis in adaptive management is on clear specification of outcomes before action is taken.(213) The Council's effort to simply improve flows and to reduce travel times epitomizes a consensus management/incremental decision-making approach, because these goals are not clear objectives. The Council's approach runs counter to the Northwest Power Act's mandate for specification of sound biological objectives, and action based on best available scientific knowledge, and its conceptual policy, adaptive management. It also jeopardizes the Columbia Basin salmon and those runs listed under the ESA.

VI. CONCLUSION

The Council admits that its Columbia Basin fish and wildlife program is not sufficient to save the salmon.(214) Meanwhile, the federal managers continue to claim that the program is the cap on fish protection measures, resisting any operational changes to benefit salmon not included in the program.(215) This position makes it clear that the Council cannot rely upon the federal agencies' cooperation to give fisheries protection an important place in their power production plans.(216) Consequently, the Council must construct a biologically justified program that includes defined objectives, allowing it to evaluate the adequacy of program recommendations and the success of program measures. The program needs a travel time objective to determine whether its centerpiece provision, the water budget, is accomplishing the biological goal for which it was established--to reduce travel times for juvenile salmon migration.

The Council must abandon its quest for consensus in setting biological objectives. While it is true that hydroelectric operations could be affected by a reallocation of water to protect fish, that is exactly what Congress intended.(217) Congress stipulated that the only economic limitation on fishery protection is assurance of 'an adequate, efficient, economical, and reliable power supply' for the region.(218) The Council must recognize that there is an abundance of flexibility inherent in these terms, as there is in the hydrosystem itself, and must press for major changes in hydrosystem operation to protect fish rather than suggest the incremental changes the last decade has witnessed. The Columbia Basin's power production has been subsidized for more than fifty years; it has not had to treat the destruction of anadromous fisheries and the environment as a cost of operation. This failure to consider such enormous costs can no longer be allowed.

The Council must defer to the fishery managers' expertise in constructing the program. The Act anticipated that the regional managers would be the principal source of biological expertise in forming and implementing the program.(219) While the Council is to receive and consider the recommendations and views of other agencies and groups, the Act instructs the Council to defer to fishery managers' recommendations.(220) At present, different entities advocate a myriad of alternatives to reduce travel time. These recommendations include Snake River reservoir drawdown, deeper drawdown of the John Day pool in the Columbia, increased flow augmentation in both the Snake and Columbia rivers, and many combinations and variations thereof. A travel time objective should be the vehicle to enable the Council to choose which, if any, of these recommendations should be chosen when the program is next amended.

The Council must take action in response to the best available scientific knowledge that it has already acknowledged as true--juvenile salmon must migrate through the Columbia system in biologically-limited period of time. These salmon evolved to make their seaward journey in three weeks,(221) not three months. Adequate in-river flows facilitated this for thousands of years, and remain the answer today. A travel time objective in the program is required so that measures to achieve necessary travel times can be implemented and evaluated. This is required by the Northwest Power Act, and necessary to save the endangered Columbia Basin salmon.

VII. POSTSCRIPT 

After this article was completed, several developments relative to the flow/travel time issue have appeared. hi its 1991 program amendments, the Council called for a third-party scientific evaluation of the new and existing data relative to the flow/travel time issue.(222) The draft report was completed on October 8, 1993, and concluded:

[T]he general relationship of increasing survival with increasing

flow in the Columbia River Basin still appears to be reasonable.

Studies of different stocks, using different analytical approaches,

have tended to show the same general patterns. Even given the

various corrections that could be made to counter known biases

and interrelated sources of mortality, the plots of some expression

of survival vs. some expression of flow have, with one exception,

been best described by models that show positive flow-survival relationships.(223) This report reinforces the need for the Council to accept the fishery managers' conclusion that increased survival through shorter travel times is associated with increased river velocities. The Council's consensus approach to the travel time issue is not only a statutory violation, it is now inconsistent with its own independent study.

In a separate development, the Snake River Salmon Recovery Team released a draft of a recovery plan to restore Snake River salmon stocks listed under the Endangered Species Act.(224) To the disappointment of many groups interested in the Columbia Basin salmon issue, the recovery plan seems to place heavy reliance on artificial transportation as the primary mechanism to restore these stocks.(225) Given the demonstrated ineffectiveness of artificial transportation as a means to sustain these runs,(226) if the final recovery plan is similar to the draft, its implementation will likely be strenuously resisted, and litigation is almost assured.

The ESA recovery plan does not legally or functionally supplant the Council's fish and wildlife program. The two management plans are very different in scope and objectives. The recovery plan's scope is limited to the Snake River stocks listed under the ESA. The objective of the recovery plan is to restore the stocks to a point where they can be delisted.(227) The Council's fish and wildlife program, on the other hand, addresses all salmon stocks in the Columbia Basin.(228) Its objective is much more ambitious: to restore the stocks to "healthy and harvestable populations."(229) These two management plans will coexist and jointly steer the direction of fishery management in the Columbia Basin. Given the reliance of the draft recovery plan on artificial transportation, and the paucity of guidance in that plan for hydrosystem operation and maintenance of adequate fish flows, it is incumbent on the Council to take the lead and establish a travel time objective in its program.

The recovery team also states that it is up to the region to choose between in-river migration and artificial transportation.(230) If the region chooses in-river migration as the preferred alternative, or if the transportation program continues to "measure-down" to its ineffective past, the Council's program will be the guiding management plan. The program will need to have biologically based travel time objectives to structure flow measures around. The anadromous fish runs of the Columbia Basin are in trouble. Only prompt action will reverse the fishes' swift descent to destruction in the hydrosystem. If any entity can save them, it is the Council created by the Northwest Power Act. The Council must reject the consensus management that has produced only gridlock. It must assume a leadership role. And it must aggressively fulfill its mandate to restore the basin's salmon runs through the only means supported by sound scientific knowledge--biologically based travel times. (1.) U.S. General Accounting Office, Endangered Species: Past Actions Taken to Assist Columbia River Salmon 8 (GAO/RCED-92-173BR 1992). The total number of fish returning to the basin is now estimated at approximately 2.5 million, of which only 500,00 are wild or naturally spawning fish. Id. (2.) The National Marine Fisheries Service listed the Snake River sockeye salmon as endangered under the Endangered Species Act (16 U.S.C. [subsections] 1531-1543 (1988 & Supp IV 1992)) on December 20, 1991. Endangered and Threatened Species; Endangered Status for Snake River Sockeye Salmon, 56 Fed. Reg. 58,619 (1991) (codified at 50 C.F.R. [sections] 17.11). On May 22, 1992, Snake River fall chinook, and spring/summer chinook (considered one stock under the listing) were listed as threatened. Endangered and Threatened Species; Threatened Status for Snake River Spring/Summer Chinook Salmon, Threatened Status for Snake River Fall Chinook Salmon, 57 Fed. Reg. 14,653 (1992) (codified at 50 C.F.R. [sections] 17.11). (3.) See Northwest Power Planning Council, Compilation of Information on Salmon and Steelhead Losses in the Columbia River Basin 7-19 (1986). See also Michael C. Blumm, Hydropower vs. Salmon. The Struggle of the Pacific Northwest's Anadromous Fish Resources for a Peaceful Coexistence with the Federal Columbia River Power System, 11 Envtl. L. 211, 214-223 [hereinafter Hydropower v. Salmon] (discussing specific causes of mortality caused by dam construction and operation). (4.) Id. (5.) "Anadromous fish [such as salmon and steelhead) hatch in fresh water, migrate to the ocean where they are reared and reach mature size, and eventually complete their life cycle by returning to the freshwater place of their of their origin to spawn [before dying]." See Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n., 443 U.S. 658, 662 (1978); see also Anthony Netboy, The Columbia River Salmon and Steelhead Trout: Their Fight for Survival (1980) (Comprehensive presentation of the life history of Columbia Basin anadromous fish runs). (6.) 16 U.S.C. [subsections] 1531-1543 (1988 & Supp IV 1992). (7.) 43 Fed. Reg. 45,628 (1978). (8.) Section 4(a)(1)(d) makes the inadequacy of existing regulatory mechanisms one of the factors to be considered when the agency makes a listing determination. 16. U.S.C. [sections] 1533(a)(1)(d). (9.) Letter from H.A. Larkins, National Marine Fisheries Service regional director, to Gary Kimble, Columbia River Inter-Tribal Fish Commission executive director (October 30, 1991) (discussing a draft federal register notice) (on file with author). (10.) Pub. L. No. 96-501, 94 Stat. 2697 (1980) (codified at 16 U.S.C. [subsections] 839-839h (1988)) [hereinafter Northwest Power Act]. (11.) 16 U.S.C. [sections] 839b(d), (e). (12.) See Michael C. Blumm, Fulfilling the Parity Promise: A Perspective On Scientific Proof, Economic Cost, and Indian Treaty Rights In the Approval of the Columbia Basin Fish and Wildlife Program, 13 Envtl. L. 103, 109-12 (1982) [hereinafter Fulfilling Parity]. (13.) The relevant agencies are the U.S. Army Corps of Engineers (Corps) (responsible for construction and operation of the dams), the Bonneville Power Administration (BPA) (responsible for marketing the power produced at the dams), the Federal Energy Regulatory Commission (FERC) (responsible for licensing non-Federal dams), and the Bureau of Reclamation (responsible for dam construction and operation for irrigation and recreation). See Hittle et al, Pacific Northwest Power Generation, Multi-Purpose Use of the Columbia River and Regional Energy Legislation: An Overview, 10 Envtl. L. 235, 238-41 (1980). (14.) See, e.g., Bonneville Power Administration, Biological Assessment 1992, Operation of the Federal Columbia River Power System 7 (July 13, 1992) [hereinafter Biological Assessment] (stating that "[o]peration of most dams and reservoirs in the Columbia River System is coordinated to maximize the power benefits provided by storage, within the constraints placed on the system"). While this language indicates that fishery conservation should be accommodated as a "constraint on the system," this has not been the case. See also Michael C. Blumm and Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 Envtl. L. 657, 703-706 (1991) [hereinafter Unraveling Parity) (criticizing water managers for not treating fishery conservation as a constraint). (15.) See Hydropower v. Salmon, supra note 3, for a comprehensive discussion and analysis of congressional directives to minimize impacts to the basin's fisheries in the statutes authorizing the construction of the individual dams, and other environmental protection statutes. (16.) See, e.g., Michael C. Blumm and Brad L. Johnson, Promising a Process for Parity: The Pacific Northwest Electric Power Planning and Conservation Act and Anadromous Fish Protection, 11 Envtl. L. 497, 502 n.26 (1981) [hereinafter Promising Parity]. (17.) See Fulfilling Parity, supra note 12, at 109-12. (18.) Confederated Tribes and Bands of the Yakima Indian Nation v. Federal Energy Regulatory Comm'n., 746 F.2d 466, 473 (9th Cir. 1984), cert. denied sub nom., Public Util. Dist. No. 1 v. Confederated Tribes of the Yakima Indian Nation, 471 U.S. 1116 (1985). (19.) See supra note 2. (20.) Columbia Basin Fish and Wildlife Authority, The Biological and Technical Justification for the Flow Proposal of the Columbia Basin Fish and Wildlife Authority 1 (Feb. 1991) [hereinafter Flow Justification (21.) Id. (22.) Id. (23.) Id. (24.) The Oregon Dept. of Fish and Wildlife, Idaho Dept. of Fish and Game, and the Columbia River Inter-Tribal Fish Commission, National Marine Fisheries Service, and United States Fish and Wildlife Service proposed establishing travel time objectives in the Council's 1991 amendments to the program. See Northwest Power Planning Council, Columbia River Basin Fish and Wildlife Program, Phase II Administrative Record 457-96; Northwest Power Planning Council, Columbia River Basin Fish and Wildlife Program, Phase III Administrative Record 1006-12. (25.) The Council rejected the proposals, but indicated that it would revisit its decision in the next phase of plan amendment. Northwest Power Planning Council, Amendments to the Columbia River Basin Fish and Wildlife Program (Phase II) Response to Comments 36, app. V at 4-6 (1992) [hereinafter Response to Comments). (26.) The Council is required to include program measures "based on, and supported by, the best available scientific knowledge." 16 U.S.C. [sections] 839b(h)(6)(B) (1988). (27.) 2 Northwest Power Planning Council, Strategy for Salmon 34 (October 1992) [hereinafter Strategy for Salmon]. See section V infra criticizing the Council's quest for consensus in the face of scientific evidence that increased flows reduce travel time and increase smolt survival). (28.) In deference to commenters' concerns, the Council deferred action on several of the [program] framework elements, to allow further analysis and consultation.' Northwest Power Planning Council, Strategy for Salmon Response to Comments 13 (Nov. 19, 1992) [hereinafter Phase III Response to Comments]. The Council does not identify the "commenters" to whom it deferred, but they were certainly not the fishery management agencies, which unanimously called for establishing a travel time objective. See supra note 21. (29.) 16 U.S.C. [sections] 839b(h)(6)(a), (B) (1988). (30.) See infra section II. (31.) Pub. L. No. 96-501, 94 Stat. 2697 (1980) (codified at 16 U.S.C. [subsections] 839-839h (1988)). (32.) 16 U.S.C. [sections] 839h(1)(a) (1988). After hearing testimony in the House Commerce Committee, the Committee concluded that "existing federal legislation is "not adequate to offset the cumulative impact of the hydroelectric dams of the Columbia and its tributaries on fish and wildlife." H.R. Rep. No. 976, 96th Cong., 2d Sess. pt. 1 at 48 (1980) [hereinafter Commerce Report). (33.) 16 U.S.C. [sections] 839b(h)(11)(a)(i) (1988). The Ninth Circuit interpreted the equitable treatment' mandate as a requirement for federal agencies to place fishery concerns on "equal footing" with the other purposes for which the hydrosystem is operated. Confederated Tribes and Bands of the Yakima Indian Nation v. Federal Energy Regulatory Comm'n., 746 F.2d 466, 473 (9th Cir. 1984), cert. denied sub nom. Public Util. Dist. No. 1 v. Confederated Tribes of the Yakima Indian Nation, 471 U.S. 1116 (1985). (34.) 16 U.S.C. [sections] 839(6) (1988). (35.) Id. [sections] 839b(h)(11)(a)(i). (36.) Id. (37.) 126 Cong. Rec. H10,683 (daily ed. Nov. 17, 1980) (remarks of Rep. Dingell). (38.) 126 Cong. Rec. H10,681 (daily ed. Nov. 17, 1980) (remarks of Rep. Dingell). For a discussion of the importance of the legislative history of the Power and Conservation Act, see Promising Parity, supra note 16, at 517-18. (39.) 16 U.S.C. [sections] 839b(h)(8)(d). (40.) Id. [sections] 839b(h)(11)(a)(ii). See also Public Utility District No. 1 of Douglas County v. Bonneville Power Administration, 947 F.2d 386, 389 (9th Cir. 1991) (analyzing the Act's requirement that BPA compensate the owners of nonfederal power projects for lost revenue that results from implementing fishery protection measures). (41.) Commerce Report, supra note 29, at 57. (42.) 16 U.S.C. [sections] 839b(h)(1)(a), (11)(A) (1988). "If the fish ... populations of the Pacific Northwest are to be restored to the sportsmen, the Indians and the commercial fishermen, this is the mechanism which will do it." 126 Cong Rec. H10,680 (daily ed. Nov. 17, 1980) (remarks of Rep. Dingell referring to the fish and wildlife program). (43.) 16 U.S.C. [sections] 839b(h)(2) (1988). The House Commerce Committee stated that it believed that the region's fishery management agencies and Indian tribes would be able to provide recommendations and support data. Commerce Report, supra note 29, at 56. The Act also permits federal water managers, electric producing agencies, customers, and the public to submit recommendations if they desire. 16 U.S.C. [sections] 839b(b)(3) (1988). However, if recommendations of the region's agencies or tribes conflict with those of another source, the Council is instructed to resolve the inconsistency giving "due weight" to the agency's or tribes' recommendation. Id. [sections] 839b(h)(7). The Act directed the Council to "develop a program on the basis of such recommendations, supporting documents, and views and information obtained through public comment and participation." Id. [sections] 839b(h)(5). The program must "protect, mitigate, and enhance fish and wildlife" while assuring the Pacific Northwest an "adequate, efficient, economical, and reliable power supply." Id. "Enhancement measures shall be included in the program to the extent such measures are designed to achieve improved protection and mitigation." Id. (44.) 16 U.S.C. [sections] 839b(h)(6)(b) (1988). (45.) Id. [sections] 839b(h)(6)(a). (46.) Id. [sections] 839b(h)(6)(c). The Act contains eight other substantive standards to guide program formation. For a complete review of these, and an analysis of how the standards are to be construed to be consistent with the Act as required ([sections] 839(2)), see Fulfillin Parity, supra note 12, at 118-124. (47.) 16 U.S.C. [sections] 839b(h)(6)(e)(ii) (1988). (48.) Id. [sections] 839b(h)(6)(c),(h)(2)(A). (49.) Id. [sections] 839b(h)(4)(a). (50.) Id. 16 U.S.C. [sections] 839b(h)(6)(C). (51.) 126 Cong. Rec. H10,683 (daily ed. Nov. 17, 1980) (remarks of Rep. Dingell). This statement is not inconsistent with the requirement that measures be based on the best scientific knowledge available (16 U.S.C. [sections] 839b(h)(6)(B)), because the committee was referring specifically to the fishery manager's recommendations. See Commerce Report, supra note 29, at 56. The statement is additional evidence that Congress regarded the fishery managers, rather than the Council or any other entity in the region, as the source of the best scientific knowledge available. (52.) 16 U.S.C. [sections] 839b(h)(6)(B). (53.) 126 Cong. Rec. H10,683 (daily ed. Nov. 17, 1980) (remarks of Rep. Dingell). Commenting on the requirement that recommendations be accompanied by supporting documents, the House Commerce Committee report stated, "The recommendations must be accompanied by data to support them .... The data requirement is to enable the Council and others to understand the recommendations. The quantity or quality of the data should not serve as a basis for turning down any recommendation." H.R. Rep. No. 976, 96th Cong. 2d Sess. pt. 1 at 56. (54.) 16 U.S.C. [sections] 839b(h)(5),(7). (55.) Note that this provision allows the Council to adopt a more effective recommendation. It does not allow the Council to independently croft a more effective measure. This is consistent with the assertion that was not to be regarded as, or become, a fisheries expert. (56.) 16 U.S.C. [subsections] 839b(h)(7). (57.) 16 U.S.C. [sections] 839b(h)(4)(b) (58.) In a recent case, brought by power interests and the Direct Service Industries under the ESA, challenging fishery management, U.S. District Judge Marsh stated:

[B]y invoking the ESA [plaintiffs] purport to represent the interests of

the listed species. Yet, when push comes to shove, if the resources become

so scarce that truly hard choices must be made, plaintiffs' asserted

interests in the listed species may yield to ... their interests in

power and water for hydroelectric use.

Pacific Northwest Generating Cooperative v. Brown, 822 F.supp. 1479, 1504 (D. Ore. 1993). (59.) Section 4(h)(6)(A) provides that the program measures must 'complement the existing and future activities of the region's fisheries managers, and [sections] 4(h)(7) directs the Council to give the recommendations and rights and responsibilities "due weight" when it adopts program measures. (60.) "[N]either is it expected that the fish and wildlife agencies or Indian tribes shall be required to agree with each other or with the power interests and others in the region as to what might aptly be described as |consensus' recommendations in order to satisfy all interests." Commerce Report, supra note 29, at 57. (61.) 16 U.S.C. [subsections] 839b(h)(6)(a), (B), (E)(ii). (62.) See supra notes 24-27 and accompanying text. (63.) See National Marine Fisheries Service, U.S. Fish and Wildlife Service, Columbia River Inter-Tribal Fish Comm'n, Washington Dept. of Fisheries, Washington Dept. of Game, Oregon Dept. of Fish and Wildlife, and Idaho Dept. of Fish and Game, Initial Recommendations for the Protection, Mitigation and Enhancement of Anadromous Fish in the Columbia River Basin (Nov. 1981) [hereinafter Initial Recommendations]. See also Nat. Resources L. Inst., 16 Anadromous Fish L. Memo (December 1981), (arguing that although a travel time objective per se was not requested, the increased flows were recommended to reduce predation and residualism problems--problems exacerbated by smolts' staying in the river too long, having very high travel times). See also Strategy for Salmon, supra note 27. (64.) The proposal called for flows of 300 kcfs. (thousand cubic feet per second) at The Dalles Dam on the lower Columbia, 140 kcfs at Priest Rapids Dam on the mid-Columbia; and 140 kcfs at Ice Harbor Dam on the Snake River during the critical migration period of April 16 through June 15 each year. Columbia Basin Fish and Wildlife Authority, Proposed Mainstem flows for Columbia Basin Anadromous Fish (March 1990) (the Columbia Basin Fish and Wildlife Authority (CBFWA) is a coalition that represents seven state and federal fish and wildlife agencies and thirteen Indian Tribes). See also Fish Passage Center, 1991 Annual Report 1 (July 1992). (65.) Strategy for Salmon, supra note 27, at 35 ([sections] 3.6F). (66.) This crisis does not "afford an opportunity for extensive studies, the acquisition of new data, or the development of the best scientific knowledge." Commerce Report, supra note 32, at 56. (67.) 16 U.S.C. [sections] 839b(h)(6)(e)(ii). (68.) The CBFWA emphasized the importance of reducing travel time in its justification for increased flows:

Increases in migration time result in increases in exposure to predators,

which thrive in the reservoirs. These delays also subject migratory fish

to the higher water temperatures later in the year. It is speculated that

these additional exposures adversely affect the health and physiological 

condition of smolts. Smolts that are delayed and finally do reach the estuary

may no longer be physiologically fit to make the transition to

saltwater, or they may enter saltwater after the time when ocean conditions

are most favorable for survival. Flow Justification, supra note 20, at 1-2. (69.) 16 U.S.C. 839b(h)(e)(ii). (70.) See Initial Recommendations, supra note 63, at 163-210 (mainstem flows), 211-23 (tributary flows), 224-75, 291-93 (mainstem bypass), 276-90, 294-309 (tributary bypass), 310-30 (predation and residualism), 331-42 (artificial transportation). See also Anadromous Fish L. Memo, 16 Nat. Resources L. Inst., (Dec. 1981) (summarizing the flow proposals as well as the other recommendations). (71.) Initial Recommendations, supra note 63, at 169. However, a majority of the agencies decided to recommend a rate of 220 kcfs to accommodate hydropower considerations. Id. The Columbia River Inter-Tribal Fish Commission and the U.S. Fish and Wildlife Service did not concur in lowering the recommended rate from 300 to 220 kcfs. They did not believe that the reduced flows were biologically optimum. Id. at "Certifications." (72.) Id. at 169. (73.) The recommendation for May is presented because it is the historic peak of the smolt migration season, and therefore requires the highest flow rate. Flow rates (which are lower) for the other periods of the migration season were recommended as well. Id. at 180, Additionally, it was suggested that these flows be increased in 'high flow years' and decreased in "low flow years." Id. at 181-183. (74.) Water Budget Center, 1983 Annual Report 10-13 (Nov. 1983) [hereinafter 1983 Report] (the Water Budget Center is now called the Fish Passage Center). (75.) Initial Recommendations, supra note 63, at 679-80.

Traditionally, fishery needs have been treated as a secondary or "soft"

constraint in the operation of the river, while power production has

been considered as a primary or dominant constraint. In consequence,

fishery needs are only taken into account after all major power system

decisions have been made, if they are taken into account at all . . . .

The current situation cannot continue. Either the institutes responsible

for power planning, management, and operation of the river must modify

their treatment of fisheries and incorporate fisheries into their basic assumptions

for operation of the river, or the ultimate extinction of upriver

runs must be accepted. Realistically, there is no middle ground. Prior to the Northwest Power Act, the Fish and Wildlife Coordination Act, (16 U.S.C. [subsections] 661d-666c (1976)) required federal water managers to give fishery conservation "equal consideration" with other program elements. Id. [sections] 661. However, significant protection for fisheries was not realized, because federal managers often rejected protection measures as "unjustifiable." Id. at [sections] 662(b). For a more a detailed discussion of the failure of the Coordination Act, see Hydropower v. Salmon, supra note 3, at 268-76. (76.) Initial Recommendations, Supra note 63, at 713. (77.) Id. at 713-18. (78.) Northwest Power Planning Council, Columbia River Basin Fish and Wildlife Program (Nov. 1982) [hereinafter 1982 Program]. (79.) Id. [sections] 304. (80.) Id. (81.) See Unraveling Parity, supra note 14, at 675-76. (82.) 1982 Program, Supra note 78, [subsections] 302, 303. This allocation was essentially a compromise to reduce impacts to hydrosystem power production. Id. (83.) Id. [subsections] 303, 304. (84.) Id. The BPA funds these positions. 16 U.S.C. [sections] 839b(h)(10)(a) (1988). (85.) See Water Budget Center, 1985 Annual Report 14 (Nov. 1985) [hereinafter 1985 Report]. This institutional arrangement was not firmly established until the 1985 season, but has continued to date. (86.) 16 U.S.C. [subsections] 839b(h)(6), (7). (87.) 16 U.S.C. [sections] 839 et seq. See supra notes 4247 and accompanying text. (88.) See Commerce Report, supra note 32, at 49. (89.) 16 U.S.C. [sections] 839b(h)(6)(a). (90.) The Coordination Agreement was fashioned by the owners and operators of the Basin's hydro facilities in 1964. The agreement established operating criteria and power exchange principles, allocated downstream benefits, and required annual plans. See Bonneville Power Administration, Agreement for Coordination of Operations Among Power Systems of the Pacific Northwest (1964). See also Unraveling Parity, supra note 14, at 704-06. (91). See 1983 Report, supra note 74, at 10. (92.) Id. at 13. (93.) See Letter from John Donaldson, Executive Director, Columbia Basin Fish and Wildlife Authority, to Rolland Schmitten, National Marine Fisheries Service (March 18, 1993) (on file with author):

The agencies and tribes have made many attempts to provide recommendations

through the PNCA planning process, without success. The federal

parties have rejected all recommendations attempted through [the] PNCA

planning process. The CBFWA agencies and tribes made recommendations

to PNCA in January 1993, but were again rejected . . . . It is impossible

to influence the PNCA planning process without changing the

consultation schedule. Only then will adequate fish protection be incorporated

into the operation of the FCRPs. (94.) Telephone Interview with Michele DeHart, Fish Passage Center manager, Portland, Ore. (May 27, 1983). (95.) 1983 Report supra note 74, at 13-14. (96.) Id. (97.) Id. (98.) Id. at 36. Water budget accounting was subsequently agreed to be the requested flow minus the base power flow. However, the issue continues to surface. During the 1993 migration period, the Corps debited flood control evacuation volumes at Grand Coulee and Dworshak dams to the water budget volume, even though no request was in place for flow augmentation. The WBC claimed that at that rate of debiting, the water budget would be exhausted almost a month before the critical migration period ended. Fish Passage Center Weekly Report No. 93-11, Fish Passage Center, May 14, 1993. (99.) Id. (100.) 1983 Report supra note 74, at 36. (101.) The program elevated fishery concerns over reservoir refill and secondary energy marketing. 1982 Program, supra note 78, at [sections] 304(a)(8). (102.) Available from the Fish Passage Center, 2501 S.W. First Ave., Suite 230, Portland OR 97201. See also Michael C. Blumm, Reexamining the Parity Promise: More Challenges than Successes to the Implementation of the Columbia Basin Fish and Wildlife Program, 16 Envtl. L. 461, 494-502 (1986) (outlining the failures of the water budget to provide sufficient flows during 1983-1985). (103.) Water Budget Center, 1984 Annual Report 19 (Nov. 1984) [hereinafter 1984 Report]. (104.) Id. (105.) Id. (106.) 1982 Program, Supra note 78, [sections] 304. (107.) Water Budget Center, 1985 Annual Report 15-18 (Nov. 1985) [hereinafter 1988 Report]. (108.) Id. The agreement, pursuant to a Coordinated Plan of Operation (CPO), is an annual agreement among hydrosystem managers and the fishery managers, which directs each year's water budget implementation. For an example of a CPO, see Fish Passage Center, 1988 Annual Report at app. A (Jan. 1989) [hereinafter 1988 Report]. (109.) 1985 Report, supra note 85. (110.) 1988 Report, supra note 107, at 81. (111.) Id. (112.) Id. (113.) Id. at 18. (114.) Id. at 81. (115.) Fish Passage Center, 1992 Annual Report 12 (March 1993) [hereinafter 1992 Report]. (116.) Id. (117.) Id. at 15. The Fish Passage Center pointed out that BPA took this position even though BPA, along with the Corps and Bureau of Reclamation, credited themselves with increasing Columbia flows with Snake River flow augmentation in the Corps' Supplemental Environmental Impact Statement on 1993 system operations. Memo from Michele DeHart, Fish Passage Center manager, Portland, Ore., (Feb. 24, 1993) (on file with author). (118.) Id. (119.) See 16 U.S.C. [sections] 839b(h)(6)(A). (120.) Flows in the Snake River are largely dependent on natural runoff. For example, in 1984 the January to July runoff for the basin was 43.9 maf (million acre-feet); the system has storage space for only 3 maf. 1984 Report, supra note 103, at 7. (121.) To secure the participation of Idaho Power Company in providing water budget supplementation, beginning in 1987, BPA agreed to compensate IPC in kind for any power losses resulting from providing water for flows. Fish Passage Center, 1987 Annual Report 10 (Nov. 1987) [hereafter 1987 Report]. This formal agreement was under negotiation in the four previous water budget years, so IPC was not committed to water budget participation. Fish Passage Center, 1986 Annual Report 10 (Dec. 1986). (122.) 1987 Report, supra note 121, at 48 (Lower Granite Dam is the Snake River control point). (123.) Id. (124.) Id. at 10. (125.) 1987 Report, supra note 121, at 23. (126.) Id. at 48. The Fish Passage Center defines the critical migration period as that time when the middle 80 percent of the smolts are migrating through the system. Id. (127.) Id. (128.) 1988 Report, supra note 107, at 10. (129.) Id. at 22. (130.) Id. at 81. (131.) Priest Rapids Dam has a hydraulic capacity of 140 kcfs, meaning that flows in excess of 140 kcfs cannot be used to produce electricity. Telephone Interview with Michele DeHart, Fish Passage Center manager, Portland, Ore. May 27, 1993). (132.) 1987 Report, supra note 121, at 9. (133.) Id. at 49. See also 1988 Report, supra note 107, at 82. It should also be noted that the flow rates were established for the Columbia and Snake River control points to achieve a desired flow of 220 kcfs in the lower river at The Dalles Dam. See supra notes 72-74 and accompanying text. (134.) Strategy for Salmon, supra note 27, at 39 ([sections] 3.9). (135.) For a thorough discussion on the collection and transport program, see U.S. Army Corps of Engineers, et al., Interim Columbia and Snake Rivers Flow Improvement Measures for Salmon Draft and Supplemental Environmental Impact Statement 2-14 (Oct. 1992) [hereinafter 1992 Draft SEIS]. (136.) 16 U.S.C. [sections] 839b(h)(6)(e)(ii). (137.) 1992 Draft SEIS, supra note 135. Transportation has actually been studied since the 1960s, but has been part of the Council's program only since 1981. Id. (138.) See, eg., Letter from Ed Chaney, Northwest Resource Information Center, Inc., to Donald Bevan, Chairman Snake River Salmon Recovery Team 1 (Dec. 24, 1992) (on file with author) (citing a study by the Idaho Department of Fish and Game showing that in some years transported smolts survived at a lower rate than smolts migrating in river. The author of the study goes on to state: "No positive relationship was found in a simple regression between numbers of yearling chinook transported and subsequent adult returns. Largest returns were associated with higher flows and velocities and lower proportions of smolts transported."). (139.) Letter from Michele Dellart, Fish Passage Center Manager, to Bolyuong Tanuon, U.S. Army Corps of Engineers (May 17, 1993) ("Collection, holding, loading, and release activities associated with transportation have been shown to be extremely stressful on downstream migrants. All species should be allowed to migrate in river.") (140.) Endangered and Threatened Species; Endangered Status for Snake River Sockeye Salmon, 56 Fed. Reg. 58,619-24 (1991) (codified at 50 C.F.R. [sections] 17.11). (141.) Willa Nehlsen et al., Pacific Salmon at the Crossroads, Winter 1992 Fisheries 24, 28. (142.) Endangered and Threatened Species; Threatened Status for Snake River Spring/Summer Chinook Salmon, Threatened Status for Snake River Fau Chinook Salmon, 57 Fed. Reg. 14,653 (1992) (codified at 50 C.F.R. [sections] 17.11). (143.) 1 Pacific Northwest Power Planning Council, Strategy for Salmon, 12 (Oct. 1992) [hereinafter 1 Strategy for Salmon] (an overview of the Council's Strategy for Salmon, Supra note 27, which contains the measures and is the volume primarily referenced in this article). (144.) See 1992 Draft EIS, supra note 135, at ES-1. (145.) Columbia Basin Fish and Wildlife Authority, Proposed Mainstem Flows for Columbia Basin Anadromous Fish (March 1990) [hereinafter Proposed Flows]. (146.) Id. at 9. (147.) Initial Recommendations, Supra note 63, at 163-210. (148.) See supra notes 70-74 and accompanying text. The U.S. Fish and Wildlife Service and the Columbia River Inter-Tribal Fish Commission did not concur in the reduced flow recommendation. Both organizations believed that optimum flows of 300 kcfs at The Dalles should be delivered. Initial Recommendations, supra note 63, at "Certifications." (149.) See supra note 24. (150.) See Paul Koberstein, Battle Lines Form Over the Wild Salmon's Future, The Sunday Oregonian, Feb. 24, 1991, at 8 (Northwest Magazine). (151.) Flow Justification, supra note 20, at 3942. (152.) Id. at 39. This is known as the "flow equivalent" concept. (153.) See supra note 24. (154.) Strategy for Salmon, Supra note 27, at 25, 28-29. The amount of additional water available depends on the April forecast for the January-July runoff as measured at The Dalles. Where runoff is forecast to exceed 90 maf, no additional water over the old volume of 3.45 maf will be provided. If the forecast is less than 90 maf, the amount of water available is variable, the maximum being established as 3 maf, which coincides with a runoff forecast of 80 maf. Id. (155.) Id. at 30. (156.) Id. at 32. The pool is to be lowered to the lowest level possible without interfering with irrigation pumps. The Council expects this minimum irrigation operating level to decrease as pumps are modified to operate at lower river levels. Id. (157.) Id. at 26. This flow equivalent means the flow level required to achieve the same water particle travel time as 85 kcfs at average normal pool elevations. Id. at 25. (158.) Id. at 30-32. Qualified in this manner, the Council's endorsement of the drawdown strategy is not terribly powerful. (159.) Id. (160.) Id. at 27. (161.) Id. (162.) Brownlee Dam and reclamation projects are planned to provide 137,000 acre-feet in July, and Dworshak Dam is to be drafted as much as 20 feet during August to supply water for juveniles. For adults, the Brownlee Dam and reclamation projects are to provide 200,000 acre-feet, and another 200,000 acre-feet will come from Dworshak Dam. Id. at 27-28. (163.) Strategy for Salmon, supra note 27, at 2. See also The Trout and Salmon Leader 6 (Jan./feb. 1992) (Council Chairman Ted Hallock stated: "The plan doesn't do enough, but considering all the interest groups involved, it was the best that could be expected."). See also Michael C. Blumm, Saving Idaho's Salmon, 28 Idaho L. Rev. 667, 689-96 (1991) (concluding that the amendments simply make implementation of the water budget on the Snake more probable, and that their ability to provide necessary flows is speculative at best). (164.) See Proposed Flows, supra note 145, at 9. (165.) Strategy for Salmon, supra note 27, at 2. Although stated as a goal, the 200 kcfs target is not identified as a program measure as is the 85 kcfs Snake River target. (166.) Proposed Flows, supra note 145, at 9. (167.) Strategy for Salmon, supra note 27, at 29. (168.) The 1991 amendments state that the measures to increase flows are "aimed" at providing the specified flows at the Lower Granite and The Dalles dams. Strategy for Salmon, supra note 27, at 2. This nonmandatory water budget approach is quite different from the required flows recommended in the CBFWA flow proposal, and is a subject of litigation instituted by the Yakima Indian Nation and environmental groups, challenging the adequacy of the Council's 1991 amendments. (169.) The region's agencies and tribes submitted recommendations for the coordinated plan of operation to guide water budget implementation for the 1993 migration season. Letter from Michele DeHart, Fish Passage Center manager, to Russ George, U.S. Army Corps of Engineers (Feb. 24, 1993) (on file with author). All of the recommendations were rejected. The agencies and tribes concluded that the plan as drafted reduced their control over water budget implementation, and lamented that "[h]ydropower generation appears to be the primary concern in the operation approach to flow augmentation," Letter from Michele DeHart, Fish Passage Center manager, to Russ George, U.S. Army Corps of Engineers (April 2, 1993) (on file with author). (170.) Response to Comments, supra note 25, app. V at 3. The Council is required to ensure that the program will not jeopardize the availability of an adequate, efficient, economical, and reliable power supply in the region in formulating its program. 16 U.S.C. [sections] 839b(h)(5) (1988). (171.) 16 U.S.C. [sections] 839b(h)(7). (172.) Id. (173.) Telephone Interview with Michele Dehart, Fish Passage Center manager, Portland, Ore. (May 27, 1993). (174.) See Biological Assessment, supra note 14, at 23-27. (175.) See supra note 75. (176.) In an analysis of the bill on the House floor, Rep. Dingell stated: "It is clearly intended that no longer will fish and wildlife be given a secondary status by the Bonneville Power Administration or other Federal agencies." 126 Cong. Rec. H10,681 (daily ed. Nov. 17, 1980). (177.) 16 U.S.C. [sections] 839b(h)(7). (178.) Id. [sections] 839b(h)(7). (179.) Id. [sections] 839b(h)(7)(A). (180.) Id. [sections] 839b(h)(7)(B). (181.) Id. [sections] 839b(h)(7)(C). (182.) Strategy For Salmon, supra note 27, at 34 ([sections] 3.6F). (183.) The Council proposed funding an independent, third-party study to evaluate new and existing information on the relationship between river flows and survival of juvenile salmonids. Strategy For Salmon, supra note 24, at 34. (184.) The Council's quest for consensus may be fruitless, even by its own admission: "There is no such creature as unanimous conclusive scientific opinion when it comes to divisive questions of how much water the fish need, what kind of travel times fish need . . . . " Angus Duncan, Biology, Politics, and Salmon Recovery, Nov.-Dec. 1992 Wild Fish 4, (Mr. Duncan is a member of the Council). (185.) 16 U.S.C. [sections] 839b(h)(6). It [is] recognized that juvenile survival [is] a function of travel time, and it is travel time that is inversely related to river flow. Increased travel time and migration delay due to low flows reduce juvenile survival as a result of: 1) residualism in reservoirs; 2) a reduced ability of juvenile migrants to tolerate saltwater, 3) a delayed entry into the estuary and ocean beyond the time period when conditions are most favorable for survival; 4) an increased exposure time of juvenile migrants to predators; and, 5) exposure to higher water temperatures. Flow Justification, supra note 20, at 9. (186.) 16 U.S.C. [sections] 839b(h)(6)(B). (187.) But see Flow Justification, supra note 20, and accompanying text. (188.) 1 Strategy For Salmon 143, at 18. (189.) 16 U.S.C. [sections] 839b(h)(6)(A), (B), (h)(7), (190.) 16 U.S.C. [sections] 839b(h)(6)(C). See also Fulfilling Parity, supra note 12, at 118-124 (discussing this and other [sections] 4(h)(6) provisions in detail). (191.) 16. U.S.C. [sections] 839b(h)(7), (A), (B), (C). (192.) See Northwest Power Planning Council, 1991 Amendment Administrative Record, doc. no. 91-24, vol. 1-6. (193.) 16 U.S.C. [sections] 839b(h)(6)(C). (194.) Response To Comments, Supra note 25, at 16. (195.) Strategy For Salmon, supra note 27, at 2. (196.) Response To Comments, supra note 25, at 36. (197.) Id. at 14. (198.) Response To Comments, supra note 25, at 36. (199.) Strategy For Salmon, supra note 27, at 24. (200.) Id. at 25. (201.) Response To Comments, supra note 25, at 39. (202.) Id. (203.) Id, (204.) The Council also established 'rebuilding targets' as another element of its program framework. Strategy For Salmon, supra note 24, at 2, 89. Rebuilding targets "provide the management intent, numeric target for rebuilding, and the expected time to achieve this target." Id. at 89. However, like the performance standards that the Council set, rebuilding targets are simply an estimation of what the adopted measures will achieve. The U.S. Fish and Wildlife Service expressed its displeasure with the Council's approach and stated that rebuilding targets are based on 'arbitrary estimates of benefits of different actions," and concluded that the Council must establish "directly estimable biological objectives." The Service then suggested that the Council set a travel time objective. Northwest Power Planning Council, Columbia River Basin Fish and Wildlife Program, Phase III Administrative Record 1006-07. (205.) Response To Comments, supra note 25, at 14. (206.) Id. at 17-18. (207.) Phase III Response To Comments, supra note 28, at 13. (208.) 1 Strategy For Salmon, supra note 143, at 15. (209.) 16 U.S.C. [sections] 839b(h)(5). (210.) Former Council member Kai Lee explained that the Council has chosen the 'adapted management' policy. Dr. Lee explained:

Adaptive management is a policy framework that recognizes biological

uncertainty, while accepting the congressional mandate to proceed on

the basis of the best available scientific knowledge." An adaptive policy

treats the program as a set of experiments designed to test and extend

the scientific basis of fish and wildlife management. By learning from

the implementation of the program, the Council, resource managers, and

hydropower ratepayers should be able to act affirmatively on behalf of

fish and wildlife both in the short and long term. Kai N. Lee and Jody Lawrence, Adaptive Management: Learning From the Columbia River Basin Fish and Wildlife Program, 16 Envtl. L. 431, 435 (1986) [hereinafter Adaptive Management]. The Council purports to adhere to the adaptive management policy. See John E. Volkman and Willis E. McConnaha, Through A Glass Darkly: Columbia River Salmon, The Endangered Species Act, and Adaptive Management 23 Envtl L. 1249 (1993) (the authors, however, believe that the adaptive management approach to program implementation must proceed cautiously now that the ESA and its risk-averse mandates play a role in salmon management). (211.) See supra note 182 and accompanying text. (212.) See Adaptive Management, supra note 210, at 450. "[C]onsensus management is vulnerable to value differences clothed as scientific dispute. Lack of consensus among experts often becomes a bar to action. The presumption of consensus management is that doing nothing is better than doing something about which there is disagreement." Id. The consensus management approach, with its latent susceptibility to value differences, resembles the procedural framework of the Fish and Wildlife Coordination Act (16 U.S.C. [subsections] 661d-666c (1976)), which requires "justifiable" measures, and similarly fails to protect the basin's fisheries. See supra note 75 and accompanying text for more discussion. (213.) Adaptive Management, supra note 210 at 435, 442. (214.) See supra note 162 and accompanying text (215.) See Memorandum from Michele DeHart, Fish Passage Center manager, to Fish Passage Advisory Committee 3 (March 17, 1992) (on file with author) ("BPA and the Pacific Northwest Utilities Conference Committee have argued that the Fish Passage Center should not be able to make requests outside the Coordinated Plan of Operation or [the] Program."). (216.) The Act's drafters stated that the "power interests ... have in recent times become more concerned about these valuable natural resources," and that "they [the power interests] are anxious to accommodate fish and wildlife needs." Commerce Report, supra note 32, at 49. It would appear either that the committee was overly optimistic or the power interests have had a change of heart. (217.) Commerce Report, supra note 32, at 57 ("Some power losses, with resultant loss in revenues, may be inevitable at times if [the] fish and wildlife objectives are to be achieved."). (218.) 16 U.S.C. [sections] 839b(h)(5). (219.) Id. [sections] 839b(h)(2)(A)-(B). See also supra notes 52-66 and accompanying text. (220.) 16 U.S.C. [sections] 839b(h)(7) (in the event of an inconsistency in recommendations provided by a regional fishery manager and another entity, the Council shall resolve the inconsistency giving "due weight" to the agency or tribe). (221.) Flow Justification, Supra note 20, at 1. (222.) Strategy for Salmon, supra note 27, at 34-35. (223.) Glen F. Cade, et. al, Oakridge National Laboratory, Draft Review of Information Pertaining to the Effect of Water Velocity on the Survival of Juvenile Salmon and Steelhead in the Columbia Basin, 32-33 (prepared for the U.S. Department of Energy). (224.) See 16 U.S.C. [sections] 1533(f) (1988) (recovery plan provision). (225.) Snake River Salmon Recovery Team, Draft Snake River Salmon Recovery Plan VII, 3 (Oct. 14, 1993). (226.) See supra section III(C). (227.) The ESA directs the Secretary to develop and implement "recovery plans" for the conservation and survival of endangered and threatened species. 16 U.S.C. [sections] 1533(f)(1). "Conservation" is a term of art in the ESA, and is defined as: "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to a point at which the measures provided pursuant to this chapter are no longer necessary." 16 U.S.C. [sections] 1532(3). (228.) 16 U.S.C. [sections] 839(6); See also Strategy for Salmon, Supra note 27, at 7. (229.) Strategy for Salmon, supra note 24, at 8. (230.) Snake River SAlmon Recovery Team, Draft Snake River Salmon Recovery Plan VII, 13 (October 14, 1993).

JOHN OGAN Student, Northwestern School of Law of Lewis and Clark College, J.D. expected 1994. B.S., fisheries science, Oregon State University, 1988. The author wishes to thank Professor Michael Blumm of Northwestern School of Law, and Michele DeHart, manager of the Fish Passage Center, along with the staff of the Fish Passage Center, for their assistance in the preparation of this article.