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April 11, 2008 Columbia Basin Bulletin
The Bonneville Power Administration this week announced draft agreements with four Columbia River basin tribes, and the states of Idaho and Montana, that would guarantee $980.5 million in funding for fish and wildlife projects over the next 10 years in exchange for support of the federal hydro system salmon recovery strategy.

Two tribal agreements would assure about $900 million for fish and wildlife projects -- with about 60 percent of the total for "new" work or existing project expansion and the balance to continue existing projects for the next 10 years. The Idaho agreement earmarks $65 million for new and expanded work. A Montana agreement guarantees $15.5 million.

The agreements would quiet for now tribal arguments for the breaching of four lower Snake River dams and other dam operational changes. Spokespeople for the tribes said Monday that the federal plan is sound, and becomes even stronger with addition of dozens of new habitat and hatchery projects via the agreements.

The agreements were reached through "two years of very hard work," said Fidelia Andy, chair of the Fish and Wildlife Committee of the Yakama Nation Tribal Council and chairwoman of the Columbia River Inter-Tribal Fish Commission.

"This is the best thing to happen to Columbia River salmon in a long, long time," she said. "The benefits to salmon are quite clear."

Other tribal members said the agreement goes beyond helping salmon by providing funding for projects to help other fishes that are sacred to the tribes, such as sturgeon and lamprey.

Fishing and conservation groups immediately criticized the agreements, saying the tribes have backed off of long-held opinions on dam breaching, and the manipulation of river flows and provision of spill for migrating salmon and steelhead.

"The tribes are going to have a difficult time justifying the biological basis" for supporting the new federal salmon protection plan, said Bill Shake, representing the Northwest Sportfishing Industry Association. He and Earthjustice attorney Todd True said that as recently as January three of the tribes had been sharply critical of spill and flow provisions outlined in NOAA Fisheries' draft biological opinion on the Federal Columbia River Power System. A final FCRPS BiOp is due May 5.

Columbia River Inter-Tribal Fish Commission comments on the draft BiOp said: "The draft FCRPS BiOp, while offering some new initiatives in the hydro arena, continues the past pattern of heavy reliance on offsite actions in lieu of major changes in hydro operations.

"With respect to the hydro system, the draft BiOp is a step backwards from current system operations specified under the 2000 and 2004 BiOps and the court for flow and spill," according to CRITFC's comments. CRITFC's membership includes the Nez Perce, Umatilla, Warm Springs and Yakama tribes.

CRITFC and the Umatilla, Warm Springs and Yakama tribes signed on to one of the agreements with BPA and the federal agencies that run the dams, the U.S. Army Corps of Engineers and Bureau of Reclamation. The Nez Perce Tribe did not. A separate agreement was signed with the Confederated Tribes of the Colville Indian Reservation.

Andy chaffed at the notion that the tribes would not do what they felt was best for fish.

"That is an insult," she said. Salmon and steelhead, and lamprey and sturgeon, "are sacred to us."

"I don't think they've read it. If they have, I don't think they understand it," Yakama Nation attorney Tim Weaver said of critics of the agreement.

Warm Springs attorney John Ogan said the agreements "go beyond what we expect to see in the final biological opinion." They represent "200 projects with direct action plans" to address needs of salmon and steelhead listed under the Endangered Species Act, as well as other fish species.

"We don't have any apologies for it," Ogan said of the plan.

"Nobody cares more about the fish than the tribes," BPA CEO Steve Wright said Tuesday.

BPA is seeking public comment through April 23 on the proposals to enter into the agreements as negotiated, as well as on any associated environmental effects.

Comments will be accepted until close of business April 23, 2008. Comments may be submitted online at http://www.bpa.gov/comment/ , via e-mail to comment@bpa.gov. Other ways to comment are described in the letter to the region announcing public comment opportunity

The Nez Perce Tribe is continuing to engage in discussions with the federal agencies, according to a statement released by the tribe.

It pointed out that the tribe's 1855 treaty with the federal government which expressly reserved the right to take fish at all its usual and accustomed places, most of which are above eight federal dams on the mainstem Columbia and lower Snake Rivers.

"The dams on the lower Snake River and mainstem Columbia have a significant impact on the fish and on the Nez Perce Tribe," said Samuel N. Penney, tribal chairman. "The Nez Perce Tribe is continuing to have discussions with the federal government to see if our concerns can be resolved."

The tribes have long been actively involved in all aspects of salmon restoration in all forums.

The Columbia River Basin agreements build on biological opinions for listed salmon and steelhead and the Northwest Power and Conservation Council's fish and wildlife program, according to a Tuesday press release from the agencies and tribes. They provide common goals and priorities for hydro system mitigation; additional hydro, habitat and hatchery actions; greater clarity about biological benefits and secure funding for 10 years.

As NOAA Fisheries prepares to issue its biological opinions for the FCRPS and Bureau projects in the Upper Snake, the agreements "underscore that the new salmon plan is being developed with the highest-ever level of stakeholder collaboration and support," the press release says.

"These agreements should provide greater certainty for Columbia River Basin fish recovery activities and for Northwest ratepayers," Wright said. "The Columbia River has provided innumerable benefits to all of us here in the Northwest, and these agreements are about giving back to the river and helping to meet our tribal treaty and trust responsibilities by providing even more support for the fish species of our region."

"We have spent decades arguing with each other. Today these parties are saying let's lay down the swords, let's spend more time working collaboratively to implement measures that help fish and less time litigating," Wright said. "I give Judge Redden credit for leading us down the path of collaboration."

The agreements are intended to shore up the new BiOps. U.S. District Court Judge James A. Redden struck down the 2000 FCRPS BiOp, in part because some of the planned salmon restoration actions lacked certainty of implementation.

Wright said he felt the agreements "increase the probability of success in the courtroom." The BiOp now in the works will replace the 2004 version (which replaced the 2000 BiOp).

Redden declared the 2004 BiOp illegal, based on what he called flawed biological analysis, and ordered that it be rewritten in remand and in collaboration with states and tribes. NOAA's 2005 BiOp for the Bureau projects was also struck down for analytical flaws.

"The Yakama Nation views execution of this memorandum of agreement as a tremendous opportunity for the Yakama Nation and other tribes to put their significant expertise to work in promoting recovery of listed species, significantly enhancing habitat for naturally spawning fish and in greatly increasing salmon abundance for tribal and non-tribal users alike," said Chairman Ralph Sampson, Jr., Confederated Tribes and Bands of the Yakama Nation. "Yakama truly believes that such a cooperative effort will provide benefits far beyond those available through the continuation of litigation, in which the Yakama Nation has been highly successful, but which has resulted in few if any true benefits to the resource."

The tribes and federal agencies have been at war for years in court over provisions of NOAA BiOps, and funding of fish and wildlife projects to mitigate for the effects from construction and operation of the Columbia/Snake federal hydro system. The CRITFC member tribes have often expressed their desire to have the lower Snake dams breached.

The agreement "specifies that the tribes agree and understand that the dams will not be breached during this (10-year) period," Ogan said. Breaching the dams would require congressional authorization, but the concept has not gained any footing in Washington, D.C.

The agreement does not mean that the tribes have changed there mind about the value of breaching the dams to restore riverine habitat for listed Snake River stocks, he said. If the current set of restoration actions does not produce adequate results by 2015, "the tribes are free to advocate for breaching," he said.

The state of Idaho likewise looks forward to the new partnership.

"We celebrate this historic event and look forward to the next 10 years of stable funding," Gov. C.L. "Butch" Otter said. "We spend too much time and money in the courts and not enough time out on the ground improving fish habitat. This is a great day for Idaho's fish and wildlife."

New projects will be scientifically reviewed by the Independent Scientific Review Panel as mandated by the Pacific Northwest Electric Power Planning and Conservation Act of 1980. Much of the agreements' work will be channeled through the NPCC's fish and wildlife program, which BPA funds. BPA markets power generated in the basin's federal hydro system.

"We have a lot of implementation details to work out," said Greg Delwiche, BPA vice president for Environment, Fish and Wildlife. "We'll have a dialogue with the Council next week."

The federal agency has committed $143 million for fish and wildlife expense and $36 million for capital projects annually during fiscal years 2007-2007 under the Council program. The funding for new and expanded work in the tribal and Idaho and Montana agreements will come on top of that. The impact on power rates that BPA charges to recover its costs will be figured out during the course of a "supplemental rate case" now in progress for 2009 and future rate cases.

The $65 million in added expense from the Idaho agreement is for new projects, boosting the total investment commitment from BPA to $965 million, or about $605 million in funding for new projects and about $360 for project continuation, Bonneville spokesman Scott Simms said Thursday. The additional costs could push up power rates by 2-4 percent, according to the federal agency.

The Montana settlement announced Friday would push the total a little higher. The money is ticketed for habitat acquisitions, primarily to benefit bull trout and other resident fish, according to Bruce Measure, a Montana NPCC member.

"The acquisitions should move forward fairly soon," Measure said. Like the other parties to the agreement, the state agrees to support the new BiOps. The agreement also stipulates that the so-called "Montana operation" will be included in the FCRPS BiOp. The operation, a prolonged, more gradual and less severe drawdown of Libby and Hungry Horse reservoirs in northwest Montana was called for in 2003 NPCC mainstem amendments but has yet to be implemented.

"I think it's a good outcome for Montana," Measure said of the agreement, which guarantees long-sought funding for habitat preservation.

And more agreements could emerge.

"We've had talks with other entities," Delwiche said. The agreements announced this week had some urgency given the impending completion of the federal BiOps, which judge whether the FCRPS and Upper Snake projects jeopardize the survival of listed salmon and steelhead. None of the work by tribes, the state or others now funded by BPA in Montana, for example, are focused on listed salmon or steelhead stocks.

Upper Columbia and Snake river tribes could come into the picture. They states of Oregon and Washington may not. Talks with both have foundered.

"We had one brief discussion with the federal agencies on an MOA several months ago," said Pearse Edwards, communications director for Washington Gov. Chris Gregoire. "Our objective is to get a biologically and legally defensible BiOp, and get the federal government to agree to that. We believe this objective best serves Washington, the region and fish."

Oregon Gov. Ted Kulongoski, whose state is often at odds with Bonneville in the courtroom over fish and wildlife issues, was critical of the announced agreements.

"I'm concerned because I firmly believe this agreement doesn't go far enough and isn't aggressive enough to restore our salmon runs," Kulonogski said. "It fails to address Oregon's concerns about operation of the hydro system, especially the issues of spill and flow which are critical to strong salmon recovery."

The Idaho projects are planned for the Lower Clearwater River/Potlatch River Watershed, Pahsimeroi River and the Lemhi River regions. In particular, restoration of Idaho sockeye salmon runs will benefit from funding to develop and expand a new hatchery that will allow for increased smolt production.

The agreement also provides for habitat acquisition and restoration to increase and protect vital spawning habitat for Idaho's threatened and endangered fish runs. In addition, it provides funding to purchase water in priority areas -- returning water to streams that dry up during important spawning months -- and for a "nutrient enhancement feasibility study" for the improvement of stream productivity and vegetation in streamside areas.

The Idaho agreement calls for more than $13 million in capital expenditure during fiscal years 2008-2009 to upgrade and expand the sockeye facilities. An additional $7 million would be spent over the next 10-years for development planning and sockeye operations and maintenance.

Another $12 million is guaranteed for Upper Lemhi River acquisition and habitat restoration.

The Colville agreement offers more than $158 million for nine projects' expense over the 10-year period. There is $46 million ticketed for capital projects, including $41 million for a new Chief Joseph Hatchery.

Tribal signers of the agreements and federal officials all hailed what they called an end to aggravation and litigation, and the start of an unprecedented partnership.

"This agreement starts to change what we see as a discrepancy in where the resources have gone" in the past, said Colville attorney John Arum. Upper Columbia spring chinook salmon and steelhead face the greatest risk of extinction of the13 listed Columbia and Snake stocks, with the exception of the Snake River sockeye. Yet the two Upper Columbia stocks have not received their share of the restoration efforts and funding, he said.

The extra funding will help meet the "habitat and propagation needs of these listed fish," Arum said. "We expect that the region can begin moving these fish from the brink of extinction."

The agreement with the Umatilla, Warm Springs and Yakama tribes calls for $51.6 million in project expense annually and $132.2 million capital expenditures over the 10 years.

The agreement states that the tribes "will not initiate, join in, or support in any manner" lawsuits "regarding the legal sufficiency" of the BiOps and implementing Record of Decisions. The tribes also agree not to participate in any lawsuits regarding the operations of the dams that are "specifically addressed" in the BiOps. The tribes, too, agree "not to request additional fish or wildlife funding from BPA in on-going and future BPA rate making/approval/review proceedings during the term of this Agreement."

For more information on the public process, please visit www.bpa.gov/comment.

For specific details of the MOAs and the types of projects involved, please visit: www.critfc.org and www.salmonrecovery.gov

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