The 1996 Spill Program Gets Underway

1996 was shaping up to be one of the wettest years in recent memory. As early as January, the early bird forecast of the Corps of Engineers showed expected precipitation well above 100% of normal. Notwithstanding the total dissolved gas problems at Ice Harbor the year before, and notwithstanding the warnings they had received from us and others about the inadvisability of augmenting flows, NMFS continued to insist that BPA buy high-priced replacement power all winter instead of generating electricity with the water sitting behind the dams. As it became clearer and clearer that the spring was going to get wetter and wetter, the analysts at BPA and the Corps were the first to realize that 1996 was going to be a year of serious total dissolved gas problems at the dams.

Early estimates by Bonneville Power Administration suggested that the river would sustain an average dissolved gas level of about 125% over its entire length for the duration of the entire migration season—and that was if the melting snow and run-off came perfectly and smoothly. If there were warm spells or storms or anything else that caused spikes in the run-off, the gas levels would be far, far higher.

Stung by the criticism of their spill management in 1995, the fish agencies quickly realized that the appropriate response in 1996 was to point the finger at the Corps of Engineers. As the spill season mounted, the weekly report of the Fish Passage Center announced every week that no spill was being requested on behalf of the fishery managers and that it was all "involuntary." Asked whether NMFS cared if the State of Oregon issued the total dissolved gas waiver, Donna Darm said it would not make any difference anyway because all of the spill was going to be involuntary.

A lot of the spill was involuntary, but a lot of it was not. In the meantime, the Oregon DEQ waited patiently for NMFS to provide the report of its Expert Panel. Throughout the month of March they waited, but the report did not come. The Panel was deeply split.

Every member of the Panel who worked for a state, federal, or tribal fishery agency seemed predisposed to downplay the significance of total dissolved gas. In fact, some members of the Panel had serious conflicts of interest. For example, Tom Bachman served on the Panel, yet was also in charge of a $500,000 spill monitoring and research program that was the very subject of the Panel's scrutiny. The Panel members who were not government employees, many of whom had formerly worked for the government, took an extremely dim view of the program and grumbled privately that Bachman seemed to be defending every inadequacy of it.

The report was finally issued, although the Panel members never got to see the final draft before it went out. The Report concluded that there was simply no way to tell whether the 1995 monitoring program or the program proposed for 1996 had any ability to detect problems arising from total dissolved gas in the river. In essence, there were seven critical uncertainties, any one of which could destroy the efficacy of the program. Although the private Expert Panel members essentially recommended that the program be abolished, the government majority of the Panel thought that it would have some value to consider the Program and a set of recommendations was made in the report to try and improve upon the existing Program.

In the meantime, we had provided the Oregon Department of Environmental Quality with some proposed conditions that we felt should be attached to their waiver—although we firmly believed that the only appropriate course would be for the Commission to deny the waiver altogether. The Department staff, who we hoped (wrongly) were slowly overcoming their prejudice against aluminum companies and in favor of their fellow civil servants, embraced the idea of requiring conditions. That way, they could issue the waiver, but still have some sense that they were doing their job by bringing about better monitoring and reporting. In particular, they called for a comprehensive report to be issued by the end of the year that would (in theory) provide answers to many of the questions that had remained unanswered through three years of the program.

About four days before the Commission meeting to approve the waiver, NMFS finally released the Expert Panel report. The DEQ staff amended their conditions to include a requirement that the agencies adopt the suggestions made by the Expert Panel. That never happened.

After the order was issued, the fishery agencies reacted with outrage. They could brook no interference in their program and began to tell the Department staffers that the conditions were unreasonable or could not be met for one reason or another. They also complained to everyone who would listen that my clients had had far too much influence in the process.

The conditions required that the fishery agencies install a net pen below Bonneville Dam, put juvenile salmon in it and monitor the effect on them. But the fishery agencies had already decided that, since the data from 1995 was "misused" (death of salmon in the river was inferred to suggest a problem with the program), there would be no salmon put into net pens during 1996. As the states and tribes put it, “[t]he premise . . . that signs of GBD [gas bubble disease] on fish in supersaturated water in net pens can be assessed and related directly to mortality from DGS [dissolved gas supersaturation] is not acceptable to the SFATs [state fishery agencies and tribes]”.40 Under the prevailing political regimes, a premise unacceptable to the SFATS cannot even be the subject of scientific experimentation, while their unproven premises govern dam operations.

From our perspective, failing to put net pens full of salmon into the river to monitor effects of the spill program was but one of many problems. The biggest problem, and worst decision, was to turn off the transportation system that had been installed at enormous ratepayer expense to protect the salmon. In particular, machines had been installed at McNary Dam to collect salmon before they went through the turbines. They would then be put into a bypass facility, where they could be transferred into transport barges. Because the water in the transport barges is degassed, transport was a safe means downstream even during an extremely high total dissolved gas conditions. We had recognized this early on, and Bruce Lovelin wrote to many government officials questioning this decision. They ignored him.

On May 10, 1996, Oregon Senator Mark Hatfield wrote to Will Stelle questioning the decision to turn off transportation in favor of spill. “With dissolved gas levels in the river at such extremely high levels, and your agency’s own experts urging that smolt transportation be increased, I am curious about the logic behind the decision not to take at least some fish out of the river and barge them around the dams.”41 Mr. Stelle did not deign to respond to the letter until the migration season was over. As conditions on the river grew worse and worse, the Corps of Engineers began to point out that the facilities that would protect the salmon from these conditions were lying unused. Every week tens of thousands of salmon were collected for safekeeping and then put back into the river.

In the meantime, my clients re-engaged Steve Cramer and Associates to conduct further analysis of the effects of the spill program. We soon received his first analysis which, as expected, showed that survival rates in the river were substantially lower than in 1995 and took an especially sharp drop for a week or two in April when total dissolved gas conditions were extremely high.

Dr. Fidler had told us when we first engaged him that because the Smolt Monitoring Program sampled principally fish that had been collected deep below the dams, the resulting data were worthless: the tell-tale bubbles disappear at the greater depths, and frequently do not reappear when the fish surface. His conclusions had been confirmed by a firm BPA hired to review the monitoring program; its report warned that "pressurization to 100 feet for 5 minutes resulted in significant reduction in the clinical signals of GBT" and that "the current smolt monitoring program may be underestimating the prevalence of GBT in the Snake and Columbia Rivers".42 Dr. Fidler and the consultants were all ignored; lab tests, said the state fishery agencies and tribes, were unrepresentative of conditions on the river.

By late April, observers noticed that one of the stations in the Smolt Monitoring Program was reporting substantial signs of symptoms: the Rocky Reach facility. This dam, on the mid-Columbia River, is a "low-head" dam. The water only rises a few feet before being pushed through the turbines to generate power. As a result, fish that were diverted away from the turbine by the bypass system did not have to dive 60 feet or more, as on the Snake River projects, but only about 20 feet or so. Despite relatively nominal gas levels at the dam (about 116%), fish at Rocky Reach were showing up with huge percentages of symptoms, out of all proportion of anything that was being observed at any of the other Smolt Monitoring Program sites.

Naturally, we were excited by the Rocky Reach results, which we thought might finally convince observers that the Smolt Monitoring Program was simply not working. Again we were wrong. At a weekly TMT meeting in April, the Fish Passage Center representative, Margaret Filardo, suggested that perhaps the holding tanks at Rocky Reach were too shallow and thought that perhaps the gas levels were really in the range of 142%. That was false. Ultimately, the fishery agency position came to be that there must have been something upriver of Rocky Reach Dam causing the high measurements, though no one could explain exactly what it was or provide any measurements that substantiated it.

By early May, conditions on the river were so bad that one member of the Expert Panel, Dr. Bouck, was moved to collect his colleagues to write to Senator Hatfield and explain that the McNary transport really ought to be turned on. Six of the nine members of the Panel signed the letter. Dr. Dawley, a NMFS employee with a reasonably objective approach to science, initially promised to sign the letter, but changed his mind after his boss, Dr. Schiewe, advised against it. The letter went to Senator Hatfield, who used to pay some attention to the details of these matters, and the Senator sent a letter to Mr. Stelle asking him to explain what was going on. Mr. Stelle never did.

During November 20-21, 1996, NMFS assembled most of the characters in the gas bubble drama for a conference to review the latest developments. Steve Cramer and Steve Smith both presented evidence of a decline in survival, and a marked negative correlation between flow and survival.

Tom Backman was supposed to be sampling fish in the reservoirs to confirm that they were experiencing no symptoms of gas bubble disease, but he did not bother to measure the gas levels where he caught the fish, instead calling up the nearest dam to get measurements there. He and his research crew caught about 6,000 fish and found only 0.6% with signs of GBD—at a time when even the defective monitoring program at the dams was detecting levels of about 3.3%.

One biologist told us that Backman had left many fish in pails for hours before examining them, so that the symptoms were gone by the time they were examined. BPA consultants had warned the fishery agencies of the "necessity to analyze fish very quickly once they are captured" because "[s]mall spherical bubbles from intact fish dissipated in less than two minutes while elongated bubbles dissipated in three to eight minutes".43

In fairness, Backman was not the only one who failed to conduct the research under the exacting standards required to detect any symptoms. No one did. Even at the dams, fish were held in a "collection tank up to 24 hours prior to examination".44

Backman concluded his presentation with slides of tribal fishing at Celilo Falls. This mixture of poor science and pro-tribal propaganda led many in attendence to conclude that it was one of the most embarassing presentations they had ever witnessed at a scientific seminar. For this effort, Bonneville Power Administration paid about $500,000.

There was by now enough doubt about the usefulness of spill that even the Council’s Independent Science Group was willing to conclude in September of 1996 that “[f]ield tests of critical assumptions regarding mechanisms and locations of reservoir mortalities, along with reach mortality estimates, are needed before spill can be relied upon as the most desirable means of passing the juvenile emigrants of all species and life history types through the hydroelectric system”.45 They also acknowledged that the monitoring program “may be inadequate (usually underestimate effects) because of changes in signs in bypasses, loss of debilitated fish in reservoirs between dams, and other untested critical assumptions”.46

40 Letter, J. Nielsen et al. to B. Brown, Mar. 25, 1996, at 3.

41 Letter, M. Hatfield to W. Stelle, Jr., May 10, 1996, at 1.

42 See "Bubble Reabsorption in a Simulated Smolt Bypass System -- Concept Assessment", Final Report, BPA Contract No. DE-AC79-93BP66208 (Aug. 7, 1995), p. ES-1.

43 Id. at 6-1.

44 J. McCann, "Results of 1995 GBT Juvenile Salmon Monitoring Program and 1996 Monitoring Proposal" (FPC Oct. 18, 1995), at 9 (concluding 1995 monitoring program a success).

45 ISG, Return to the River 60.

46 Id. at 323.

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