Flushed with success at their victory in Idaho Department of Fish and Game v. NMFS, the state fishery agencies and tribes demanded that the Corps commence a spill program to meet their proposed 80% FPE target. The most immediate obstacle to this plan was the states' own water quality standards. Initially, federal biologists at BPA and the Corps fought the plan. In their view, spill had already been increased to the maximum extent possible without serious problems from dissolved gas.
The dispute circulated all the way to the White House, where the state agencies, aided by the tribes, the U.S. Fish and Wildlife Service, and political appointees at NMFS, convinced the Vice President and the White House office of Environmental Policy that they knew better about spill. The state proponents assured the White House that the state laws ostensibly prohibiting excessive spill would be no problem, for waivers could be obtained.
A lot of the problems in the salmon area stem from the enormous influence in the Clinton/Gore Administration of former staffers of Vice President Gore. Gore's political theology elevates consensus-based environmentalism above reason. According to Gore, “[w]e must make the rescue of the environment the central organizing principle for civilization”.18
Over and over again, Gore's people, including Doug Hall, the Undersecretary of Commerce, Katie McGinty, the Director of the White House Office of Environmental Policy, and Will Stelle, the Northwest Regional Director of NMFS, have ignored government scientists in favor of the unscientific assertions of environmentalists and Indian tribes.
As the political forces began to assemble behind the proposition that spill was an unmitigated good, we consulted several salmon experts and became convinced that the fishery agencies were about to embark on a plan that would decrease salmon abundance. All of the experts we consulted had substantial experience in assessing the effects of dissolved gas on salmonids, and published work on the subject.
We consulted Dr. Larry Fidler, a Canadian biologist who was involved in setting water quality standards for Canadian rivers. We consulted Wes Ebel, a former NMFS scientist who, as noted above, was instrumental in establishing the 110% total dissolved gas standard. We consulted Don Weitkamp, who had published the leading literature review in the field. We consulted Dr. Jerry Bouck, a retired biologist who had worked for the U.S. Department of Fish and Wildlife and the Bonneville Power Administration. And we consulted Dr. Anderson, whose computer models of salmon survival have consistently predicted decreased survival from increases in the spill program.19
The contrast between these experts, who supported the current water quality standard, and those who would set it aside, was striking. Dr. Bouck was moved to state that the Oregon Department of Environmental Quality “and those agencies and tribal representatives who propose raising the [total dissolved gas level] have inadequate specific training and experience with gas bubble disease and supersaturation to evaluate this highly specialized subject.”20
All of these experts presented testimony to the Oregon Department of Environmental Quality and the Washington Department of Ecology, charged to evaluate the fishery managers' requests to set aside the gas supersaturation standards to promote spill. Drs. Fidler and Bouck would not even take our money to testify, because they thought it would taint them. As events turned out, that didn’t matter. Both the paid and unpaid experts were ignored.
The fishery managers put considerable effort into preparing a "Risk Analysis" of the costs and benefits of spill, concluding that the water quality standard should be loosened to 125% total gas supersaturation. Independent scientists who reviewed the Risk Analysis declared that it was fatally flawed. So did NMFS' scientists in Seattle. Perhaps as a result of this, NMFS only half-heartedly embraced the Risk Analysis, and, under threats of litigation from the states and tribes, agreed to seek an increase to "only" 120%.
One of the problems with the Risk Assessment was that it did not contain any quantitative assessment of effects on adults. Dr. Ebel advised us that dams were constructed to operate with limited spill, and were finely tuned over decades to attract as many fish as possible to the fish ladders. Excessive spill generates currents that confuse the adults searching for the fish ladders. The adult salmon also tend to swim about laterally in the tailrace area where gas concentrations are highest before ascending the fish ladders.21 As a BPA spokeman pointed out in 1997: “We have always found high spill to impede adult passage . . . [and since the vast majority of juveniles were avoiding turbines at lower spill levels] the status quo [of high spill] doesn’t make a lot of sense.”22 High levels of spill also cause adults to "fall back" over the top of the dam, measurably reducing spawning success.23
While the BPA representative did not say so, it was entirely possible that radical increases in spill were killing many adults and saving comparatively few juveniles (at least as measured in adult equivalents). This could have a strong negative effect on the population, since the death of adults about to spawn can be devastating for a weak population. Rather than respond to BPA’s evidence, though, fishery interests have merely “scoffed at BPA ‘arguing for fish benefits’”.24
Dr. Ebel also tipped us off to a fundamental computational error in the state and tribal calculation of Fish Passage Efficiency. The states and tribes assumed a one-to-one relationship between the quantity of water spilled and the percentage of fish passing over the dam in that water. Thus, for example, they would require a 40% increase in the amount of spill to credit dam operators for directing 40% more fish away from the turbines.
In fact, studies at Lower Granite Dam demonstrated that the relationship was not one-to-one. The first 20% of spill passed perhaps 40% of the fish; the first 40%, perhaps 60% of the fish. Studies at other projects have shown similar numbers. Some limited data from 1996 studies at The Dalles Dam indicates that increasing the percentage of spill from 30% to 64% produced no measurable change in the proportion of smolts passing over the spillway.25
By abandoning the one-to-one assumption, the quantity of spill could be reduced from the amounts assumed by the fisheries managers, and still meet the 80% Fish Passage Efficiency target. This would cost less, and cause less gas supersaturation. The fishery managers were (and are) not interested in using the Lower Granite and other data. They insisted on the one-to-one assumption. This was yet another position that convinced us that their real goal was to destroy the economics of the dams, rather than protect fish.
The states and tribes quickly rolled over any skeptics in the state water quality departments. To further justify setting aside the very water quality standards that had been established to protect salmon, the Oregon Department of Justice assured the Oregon Department of Environmental Quality that granting the gas waiver was essential to avoid conflict with a federal court order.
Judge Marsh had issued no such order. I filed papers with Judge Marsh pointing out that the federal agencies and states were initiating a program that would do more harm than good, and asserting that he was requiring it. Counsel for Oregon and the other parties were quick to deny that they had said any such thing (although it is evident in the record of the Commission's proceedings). Judge Marsh declined to issue any ruling with respect to the spill program, declaring that he was not going to get involved in "scientific disputes" and that the matter was "not properly before him."
The spill proponents convinced the Oregon Department of Environmental Quality to issue a waiver to allow the spill program to go forward. They promised the Department to conduct a careful and extensive monitoring program to assure that no adverse effects would result from the spill. John Colt, a consultant hired by BPA to review the monitoring plans, reported that the monitoring program was riddled with inconsistent and faulty procedures. Even the limited data that was collected was not distributed in a fashion that would permit anyone to make decisions using it. He concluded: “The study team was unable to clearly document the time history of what data was distributed and what data (if any) was not published . . . there is a perception by some agencies that the Fish Passage Center is withholding data.”26 As events continued to unfold over the next several years, Mr. Colt’s recommendations for improvement went unheeded.
From our perspective, there was only one bright spot in the 1994 spill program. Researchers at Bonneville and other dams using ninety-power microscopes to examine tiny, two-inch juvenile steelhead found that a very high percentage of fish had gas bubbles in their gills, leading the National Marine Fisheries Service to reduce the amount of spill in mid-season.
Unfortunately, the fishery managers fixed that problem the next year by taking away the ninety-power microscopes in favor of lower-powered instruments so that no symptoms could be seen.27 They also terminated any analysis of the gill filaments of juvenile salmonids, even though experts told them "examination of excised gill filaments can detect evidence of GBD that is not detected using stereoscopic methods of examination of fins, lateral line and intact gill filaments".28
This was sufficiently outrageous conduct to provoke a Congressional hearing, during which Idaho Senator Dirk Kempthorne suggested that it was possible "that NMFS has designed a program so that it is ignoring this gas bubble trauma situation".29 The media ignored the hearing, and Senator Kempthorne gave up trying to fix the problem. Later, some at NMFS (not the scientists in Seattle) began to claim that the researchers had never even seen gas bubbles at all, but had seen tiny globules of fat, probably a biological impossibility.
18 A. Gore, Earth in the Balance.
19 See, e.g., J. Anderson, “The Impacts of a Spill Program”, Jan. 12, 1995.
20 Letter, G. Bouck to R. Baumgartner, Dec. 22, 1994, at 1.
21 NMFS, Biological Opinion on FCRPS Operations, Mar. 2, 1995, at 107.
22 Quoted in B. Rudolph, “TMT Wrestles with Questions of Barging and Spill”, Clearing Up, May 19, 1997, at 9.
23 The most recent study of this phenomenon is T. Bjornn et al., "Passage of Adult Chinook Salmon and Steelhead Past Dams and Through Reservoirs in the Lower Snake River and into Tributaries", conducted for the U.S. Army Corps of Engineers and BPA.
24 Id. (quoting R. Heineth of the Columbia River Inter-Tribal Fish Commission).
25 Memo, J. Ruff to B. Hevlin, April 22, 1997, Attachment (3), at 1.
26 Montgomery Watson, Report for Contract No. DE-AC79-93BP66208, “Task 5—Review of Monitoring Plans for Gas Bubble Disease Signs and Gas Supersaturation Levels on the Columbia and Snake Rivers”, at 48 (Oct. 18, 1994).
27 See generally Salmon Spill Policy on the Columbia and Snake Rivers, Hearings before the Senate Subcommittee on Drinking Water, Fisheries and Wildlife of the Committee on Environment and Public Works, S. Hrng. 104-291, June 22, 1995, at 33 (NMFS officials concede that more symptoms are visible at higher powers).
28 "Comparison of Clinical Signs of Gas Bubble Disease in the Gills of Smolts Using both Compound and Dissecting Microscopes", Report for Contract No. DE-AC79-93B966208, at 9 (BPA Aug. 25, 1995).
29 Salmon Spill Policy Hearing, June 22, 1995, at 33.
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