By the end of the 1996 spill season, Steven Cramer had assembled convincing evidence, based on PIT-tag counts of fish, that survival had dropped from 1995 to 1996, and the worst drops were in the periods of highest gas. As flow and spill rose over the course of the season, survival dropped (rising temperatures could have played a role too):
Figure 26: 1995 and 1996 In-River Survival, Lower Granite Dam to McNary Dam47
The National Marine Fishery Service’s analysis of the 1996 PIT-tag data confirmed Cramer’s work, although it used a different method of calculation. According to NMFS, survival measured from Lower Granite Dam to McNary Dam, fell from 66.7% in 1995 to 58.7% in 1996.48 Large increases in flow and spill had produced a 12-13% decrease in salmon survival. Because no one could measure what was happening below McNary Dam, the true losses may have been much higher.
In January 1997, Oregon's Environmental Quality Commission held a meeting to allow the fishery agencies to present their report. The Commission did not offer opponents of the spill program an opportunity to present their views, which was the first sign that all of our efforts would prove unavailing. Dr. Mark Schneider of NMFS, who had evolved into NMFS’ hatchet man on spill, and Dr. Margret Filardo of the Fish Passage Center downplayed the contents of the draft Annual Report. They claimed that they were not worried about the PIT-tag data because survival was generally up (a false claim) and the Smolt Monitoring Program had not detected any problems (for reasons discussed above).
Dr. Filardo went so far as to claim that new research, not yet written up, suggested that the smolt bypass systems had no effect on symptoms, so there was reason to have confidence in the Smolt Monitoring Program results. I wrote to her asking what research she was talking about, and she referred me to NMFS’ Earl Dawley.
Mr. Dawley sent me a copy of the abstract of his research. The abstract had precisely the opposite results from those claimed by Dr. Filardo: “Data obtained in 1996 identified a decrease in prevalence and severity of GBD signs in steelhead released 0.5 km upstream from the dam. A smaller decrease in prevalence and severity was observed in fish held in a 5-m deep net-pen”.49 In other words, fewer symptoms were measured after fish went deep below the dam for collection, just as lab tests had predicted.
Mr. Dawley refused to tell me what the numbers were. He thought that the experimental design was defective, so it didn’t really prove anything—the standard response by fishery officials when their own experiments, that they design, produce results inconsistent with the party line. Bruce Lovelin sent Mr. Dawley’s abstract to the Commission as an example of why the Commission ought to “look beyond the testimony of Fish Passage Center representatives and other fishery agency managers with no particular expertise in the effects of gas bubble disease on fish”.50
In the meantime, the upper level bureaucrats at NMFS carefully edited out all the controversial passages that the scientists had written in the draft Annual Report. No longer were drops in survival attributed to gas bubble disease.
One of the saddest facts about bureaucracies, is that once someone rises to the level of making decisions of real importance, they are too busy to learn the details. They must trust their subordinates to summarize complicated issues in a single page or two. In this case, that trust was sadly misplaced.
The Commission staff went all out to support the fishery agencies. Their memo to the Commission made the preposterous claim that some 288,000 fish would be generated by ten days of spill at Bonneville Dam.51 The “right” number—giving the benefit of the doubt as to positive effects of spill—was about 237.52 That’s the difference between spending a thousand dollars a fish, or a dollar a fish. Given the current economics of salmon recovery, a dollar a fish would be a bargain, and no one would complain.
The staff discounted the scores of violations of the Commission’s 1996 waiver by accepting the claim that the spill “was not specifically requested for fish passage”53—as if having enshrined the request in a biological opinion and sought and obtained a waiver to allow it, the harvest agencies could disavow all responsibility for it. Although the harvest managers had numerous opportunities to reduce spill and try and get gas levels down within the water quality guidelines, the violations were ignored because, said the staff, “[t]he spill management objective during the spring migration was directed toward meeting the total dissolved gas waiver . . .”
The PIT-tag-measured evidence of survival decreases was discounted as the possible result of other factors. The idea that spilling at collector projects removed hundreds of thousands of salmon from barges that could have doubled their survival was denied on the basis that transportation studies had produced “equivocal” results.54 The staff even echoed harvest manager testimony that adding more hatchery fish would somehow reduce harvest pressure on endangered Snake River salmon.
The staff did disclose numbers from Mr. Dawley’s study he had been unwilling to disclose to me. More than half the fish sampled after passage through the bypass systems had no signs of gas bubble disease at all, while the control groups in the net pens showed “a progressive loss of signs”.55 Like Mr. Dawley, however, the staff argued that the data was inconclusive and could not be generalized to other salmonid stocks.
On February 28, 1997, the Commission met to consider the fourth annual request for a waiver. My clients' lobbyists gave advice that it was better not to be confrontational with the Commissioners. My “emperor has no clothes” and “where’s the beef” speeches were not appreciated. Lobbyists think it is far better to deliver a set speech than to contradict opponents to the point where their credibility is openly questioned. They fight to keep details out of the realm of public policy, and are a significant reason the legislatures pass laws that grow more and more vague. So I wasn’t invited to speak at the meeting.
Despite advice from the Bruce Lovelin of the Columbia River Alliance that the Spring Creek hatchery spill program would cost electric ratepayers from $1,500 to $3,000 per harvestable adult salmon (if it had any positive effect at all), the Commission voted 3-1 to approve a waiver designed to allow spill for ten days. Only Chairman Lorenzen voted no.
After the meeting, reporter Bill Rudolph called up the assistant hatchery manager at Spring Creek, who was “puzzled by the duration of the 10-day March spill at Bonneville since most [of] the smolts made the 20-mile trip in ‘eighteen to twenty-four hours’”.56 When Rudolph asked Commissioner Lorenzen about this, he responded that “state fishery managers assured the Commission that it took ten days for the fall chinook to make the passage”.57 As the Commission (and everyone else) continues to let the fishery managers get away with their misrepresentations, the misrepresentations get more and more extravagant.
Rudolph also interviewed a NMFS scientist, Gary Fredericks, who told him that 7.5 million fish to be released from Spring Creek hatchery represented “pre-production thinning”, because the U.S. Fish and Wildlife Service raises too many fish so as to cushion for the possible effects of a disease outbreak.58 Survival for these fish would be much higher if they were released later. The bottom line: citizens of the Pacific Northwest were taxed more than $1 million to enhance the survival of fish that probably never should have been produced in the first place.
The dam operators initially agreed to provide the spill for only seven days. At a meeting of the “Technical Management Team” for river operations on March 19, 1997, representatives of the U.S. Fish and Wildlife Service demanded an extension of the spill to ten days. Their request was supported by Ron Boyce of the Oregon Department of Fish and Wildlife and Bob Heineth of the Columbia River Intertribal Fish Commission.
The U.S. Fish and Wildlife representative acknowledged that most of the smolts would have passed Bonneville Dam within the first twenty-four hours, and that, based on 1996 data, 99.8% of the smolts would have passed by the dam in the first seven days.59 When representatives of Bonneville Power objected to the cost, the response from the fish managers, was, in substance, that BPA had already agreed that changes in operations to benefit fish would not be credited against fish program spending (see Chapter 13). Fishery managers see absolutely nothing wrong with spending virtually any amount of BPA’s money to make fish, even hatchery fish. The bottom line is that they proposed to spend $300,000 to improve the survival of 0.2% of the fish by 0.3%—or about $150,000 per adult salmon (again giving the spill proponents the benefit of the doubt as to positive effects).
By the time the Commission met to approve the waiver of total dissolved gas standards for the balance of 1997, any pretense of actually measuring the effects of the waiver on salmon and other fish and wildlife collapsed. The Commission dutifully issued the waiver, watering down its 1996 conditions so that there was no longer any requirement that the fishery agencies even measure changes in survival of salmon from the spill program. The troublesome PIT-tag studies that had shown a 13% drop in survival from 1996 to 1997 would not have to be conducted at all. Instead of measuring effects on fish, the fishery agencies would be permitted to use their one-page spreadsheet model that ignores gas effects, SIMPAS, to predict survival.60 The Commission even ratified the abandonment of net pen research.61
The staff of the Department is eager to get out of the business of reviewing the harvest managers’ demands for waivers. Thus the staff is promoting a scheme whereby the Oregon Department of Environmental Quality, the Washington Department of Ecology, and the U.S. Army Corps of Engineers would enter into a “Memorandum of Understanding” that would obligate the Corps to “fix” the dams so that they would no longer generate high levels of dissolved gas. In exchange, the state water quality agencies would grant a long term waiver of the water quality standards.
Some within the Corps object to this approach, since “we’re several years away from knowing what th[e gas reduction] strategy will be, and how it will be paid for”.62 As the Corps’ Doug Arndt has explained, “you can’t guarantee meeting the 110% standard under any and all conditions without spending billions”.63 The state fishery agencies, notwithstanding their insistence that dissolved gas levels of 120% or more are harmless when seeking spill, insist that “meeting the 110% total dissolved gas (TDG) standard should be used as a ‘hard constraint’ in evaluating gas abatement alternatives”.64
The harvest managers are so eager to avoid continuing public scrutiny of their spill programs through state water quality review that they have mobilized all available political power to attempt to force the execution of such a Memorandum of Understanding. The White House has directed the United States Environmental Protection Agency to work with the states and tribes to this end.
The EPA has a carrot to offer the states: in exchange for going along with the White House efforts to re-engineer the hydrosystem, the state water quality agencies may get relief from federal requirements that they prepare “Total Maximum Daily Load” (TMDL) listings for the Columbia River system.65 This is a recurring pattern in the environmental law context: federal officials threaten an enormous, invasive and unnecessary expansion of federal authority, and then back off in exchange for policy concessions by state officials in other areas.
Oregon Representative Elizabeth Furse and Idaho Representative Mike Crapo, the anti-transportation leaders of the Northwest Congressional delegation, went so far as to demand that gas abatement structures “be completed at all mainstem projects by March 1, 1997”—three months after they issued their demand.66 That was utterly impossible, and probably would have been illegal, since Congress has yet to appropriate money for gas abatement construction.
Chairman Lorenzen still tells the press that the Commission “strive[s] to apply the same scientific standards to anyone who comes before them”.67 If the Commission strives, it certainly fails miserably. No private citizen could get a water quality standard set aside by showing up in front of the Commission unable to answer the simplest questions.
47 S. Cramer, “Seasonal Changes During 1996 in Survival of Yearling Chinook Smolts Through the Snake River as Estimated from Detections of PIT Tags”, Aug. 1996, at 1 (Figure 1).
48 Chart presented to Implementation Team by John Williams, attached to Letter, B. Lovelin to H. Lorenzen et al., Feb. 21, 1997.
49 B. Monk, R. Absolon, & E. Dawley, “Changes in Gas Bubble Disease Signs and Survival of Migrating Juvenile Salmonids Experimentally Exposed to Supersaturated Gasses, 1996” (NMFS 1997).
50 Letter, B. Lovelin to H. Lorenzen et al., Feb. 21, 1997, at 5.
51 Memo, L. Marsh to EQC, Feb. 28, 1997, at 1.
52 B. Rudolph, “Oregon Will Grant NMFS Spill Waiver”, NW Fishletter, Mar. 5, 1997, at 2 (citing NMFS calculation).
53 Memo, L. Marsh to EQC, Feb. 28, 1997, at 3 (discussing April spill).
56 B. Rudolph, “Oregon Will Grant NMFS Spill Waiver”, NW Fishletter, Mar. 5, 1997, at 2.
59 Spreadsheet by Gary Fredericks (NMFS), Feb. 11, 1997 (handed out at TMT meeting).
60 EQC Order, April 18, 1997, Exhibit A, at 4.
62 R. Peters, quoted in Dissolved Gas Team Meeting Notes, Oct. 15, 1996, at 2.
63 Quoted in Implementation Team Meeting Notes, Nov. 7, 1996, at 8.
64 Letter, R. Boyce (ODFW) & M. Powelson (NWPPC) to B. Hevlin (NMFS) & J. Ruff (NWPPC), Sept. 9, 1997, at 2.
65 See Dissolved Gas Team Meeting Notes, Oct. 15, 1996, at 2 (reporting comment by ODEQ’s Russell Harding that “the MOU could very well substitute for a TMDL listing for the Columbia system”).
66 Letter, E. Furse and M. Crapo to R. Hardy et al., Dec. 9, 1996, at 3.
67 Reported in B. Rudolph, “Oregon Water Agency Wavers on NMFS Spill Waiver”, Clearing Up, Mar. 10, 1997, at 8.
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