Grant Eskelsen
Energy Law, Professor Palmiter
Fish, Power, Irrigation or Flood Control?
Which has priority to dictate how the water in the Columbia River Basin is used?
The Columbia River basin is one of the largest river systems in the world, and the second
largest in the United States. It also flows through several different ecosystems, going from high
mountains to arid plateaus and then to the temperate rain forest of the west side of the Cascades.
The rivers that make up the basin, with their tremendous flows, have long been used to power the
Pacific Northwest through massive hydropower dams. The dams, however, had a major impact
on the salmon and steelhead trout that migrate up to their spawning grounds and then
downstream to the ocean to mature. Partly in response, Congress enacted the Endangered
Species Act of 1973, which, among other things, protects endangered species in the basin. As a
result, the Endangered Species Act and the welfare of the fish takes priority over each and every
other use of the river basin. However, as a few recent court cases have shown, the question of
whether this policy actually does determine who has priority is less clear.
Basics of the Columbia River Basin Operations
The Federal Columbia River Power System (“FCRPS”) is operated by the Bonneville
Power Administration (“BPA”), in cooperation with the Bureau of Reclamation (“BOR”) and the
Army Corps of Engineers (“Corps”). There are 60 dams on the Columbia and Snake Rivers and
their tributaries, not all of which are federally run. Some of the dams are privately owned, and
others are owned by other government agencies, other than the BPA. Some of the dams are very
old, built during the Great Depression. At that time, one of the biggest and still one of the
biggest and most important reasons to build a dam is to prevent against damaging floods that
damage croplands, cities, and towns. As a result, each of the authorizing legislation to build the
dams provided and demanded that the dams be used as flood control devices. Other dams that
were not built as part of the BPA system but existed on their own also pulled into them have
their own flood control mandate.
There are two types of dams: storage and run of the river projects. The two projects have
emphasis that is exactly what you would expect. Storage dams are meant to build up high
reservoirs behind them for use in many different mechanisms. Run of the river projects are
meant to tame the river slightly, and have almost no storage behind them. Instead, they are used
to generate electricity and make the rivers passable for navigation, either through locks or by
providing enough draft in the water way for boats to move up the river. Thus, each dam serves
its own local purposes.
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However, because the dams restrict water from the same river, the dams are run together
on the basis of synchronizing their flows. While each dam has its own local goals, and may be
owned by an independent company, there is a top down plan imposed on all of the dams in the
river and the system is operated as if the entire system were owned by one party. Thus, despite
the disparate needs and desires of the operations and of each individual dam owner and operator,
all of the dams are run on the same planning and utilization schedule.
To enable the complex planning of the system, the BPA and the Corps of Engineers must
produce “operating rules” or modeled curves. These curves, based on historical data, predict
how much water must be stored in reservoirs at any given moment in time. The question is
critical given that the river system has a set pattern of flooding, and in which times the system
must have excess capacity to capture the floodwaters safely in reservoirs. In this way, each
reservoir fills up and then releases more slowly the waters that otherwise would have devastating
effects. At the same time, the system must also carry enough water for its other important uses:
the protection of endangered fish and enough water to run through hydroturbines to meet the
Northwest’s voracious appetite for power.
The rules are set up so that the demands for power and water flow can be planned ahead,
and so that each operator of a dam on the river can know how much water they must release back
into the system at any given moment. Since the Columbia River Basin has two flood seasons,
there must be enough capacity in the storage dams to absorb the extra water that is produced in
spring from mountain snow melt and in the winter from heavy rains so that flooding does not
occur. But there also must be enough water stored in the dams at the end of the spring so that
adequate water is available to allow fish to migrate up and down stream. This requires sending
more water through the system in the summer and fall to help wash juvenile fish down through
the system and out to sea. At the same time, there is demand for power at all of these times for
human uses, which requires sending large volumes of water through the dams to create power.
At times, these demands contradict and are inconsistent with each other, but there must be a legal
system, explained below, which determines which use wins.
Once the dams are created and the operating rules are in place, the system is in use.
Hydroelectric dams create their energy by pooling water behind a dam and then controlling how
much water passes through a conduit. In the conduit is a turbine that when the water rushes over
it spins and generates electricity. Essentially then, a hydro electric dam generates electricity
from the force of gravity dropping water. Dams must be tall, strong structures to stop the flow of
the river, to withstand the pressure from the deep and long reservoirs that they create, and to
provide sufficient height for the water to fall through to create electricity.
But not all the water in a reservoir or in a river goes straight to power generation. Some
water goes through the dam. Other flows go through fish ladders, which allow fish to go up and
around the massive dams that stop their usual migration routes. Still others are “spilled” around
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the dam to make sure that sufficient water is falling into the lower basin to keep flows going and
to prevent water flowing over the dam itself and eroding and damaging the dam. Modern dams
are variable stoppers of water, and must be able to release more water at times and less at others.
They must have capabilities for releasing water for power generation and scaling up or down the
amount of water used at any time to meet the variable power needs. They also must be able to
vary the amount of water that “spills,” preventing spill to refill the reservoir and or releasing
excess water to protect the dams themselves from too much pressure and to meet the demands of
the operating rules.
But when the water spills, it creates bubbles. These bubbles put more dissolved gases
into the water, which may harm fish if the gas levels get too high. Further, the dams will often
catch juvenile fish and carry them through the turbine killing them. And of course, the biggest
problem with dams is that they prevent fish from swimming naturally up the river, and instead
having to face all of these man made threats to their survival. Enter the Endangered Species Act,
which is meant to prevent these threats and also dictate which needs of the river’s water have
priority over the other demands.
The Endangered Species Act
The Endangered Species Act of 1973 provides that it is the policy of the United States to
protect against the eradication of endangered animal species that are in danger of extinction. As
a result, each government agency must not do anything that would harm or lead to the extinction
of any species that is designated endangered. The Act demands in 16 U.S.C. 1536 that
All other Federal agencies shall, in consultation with and with the assistance of
the Secretary, utilize their authorities in furtherance of the purposes of this Act by
carrying out programs for the conservation of endangered species and threatened
species listed pursuant to section 4 of this Act.
Since BPA and the other Federal Agencies that run hydroelectric plants on the Columbia and
Snake Rivers are Federal Agencies, they must follow this demand. Further, there are 13 total
species of fish that live in the basin who are classified as endangered under the Act. These
species include sockeye salmon, chinook salmon and steelhead trout, in various sub-populations.
But the dams of the basin themselves interfere with these anadromous fish. An
anadromous fish is one which lives in both salt and fresh water, such as these salmon species.
The fish are born in gravelly fresh water streams high up in the mountains, and often winter over
in the streams. Then they swim down the streams to the ocean, where they grow into mature
adults before they return to the streams in which they were born to breed and give birth to the
next generation.
Of course, the major problem with this trip, and this lifecycle now is that the fish cannot
swim back up the Columbia Rivers all the way. There are 60 dams in their way. Or, once they
get up the rivers and give birth, their spawn are unable to get down the river to the ocean, and so
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the species is threatened with extinction. As one commentator notes, about eight to ten percent
of all migrating smolts, or juvenile fish, are killed by the hydroelectric turbines of the dams.
Thus, the FCRPS seems to be in violation of the Endangered Species Act, and so are the
dams in violation? No, they are not, is the short answer, but the dams must be operated in a
manner that is consistent with a biological opinion that governs their operation, as authorized by
16 U.S.C. 1536(b)(4). The National Oceanic and Atmospheric Administration (“NOAA”) took
the lead on issuing the most recent decision, which was issued in 2008 before the Bush
Administration left office. The opinion met the requirements of the Endangered Species Act that
the actions of BPA and the other government agencies consider the impact on the fish.
In short, the FCRPS Biological Opinion (“BiOp”) dictates the rule curves by which the
system would be operated by making sure that enough water is flowing down the system to help
both flush downstream the smolts and provide enough access for mature fish to make their way
back up to their spawning grounds. This changes and challenges the power operation of the
dams, as it requires that extra water must be pushed over and beyond the dams, not impounded
behind dams for optimal power generation and to store the generating capacity for later. Rather,
the water must be pushed down spillways, through fish ladders, and over the top of the dam so
that it helps carry enough of the fish along and up and down the river. These curves are
consistent with the flood control rules, but not necessarily with optimum power usage, as they
move more water through the system out and out to the ocean than is strictly necessary to make
sure that there is enough floodwater capture capacity in the system when the floods come.
However, as is true of most of the environmental questions of today, the impact of global
warming was controversial in the Bush administration. The 2008 opinion did not include or
consider the impacts of global warming in how the system must be operated now and in the rule
curves it creates. The National Wildlife Federation (“NWF”), along with 15 other groups sued
the BOR and Corps to force them to comply with the act, mainly by sending more water over the
dams to aid the fish. Initially, NOAA had issued a BiOp in 2004 which the NWF claimed did
not do enough to protect fish, mainly because it did not send enough spill water over and around
the dams to help the fish. They filed suit in 2004, and by doing so, had gotten a court order from
Judge James Redden that required that more spill be pushed over the dam. Ever since, Judge
Redden had been supervising the operations of the system to ensure that concern for fish species
had been given priority over every other use other than flood control.
April 3, 2007 Stresses the Agreement (and the Conception that the ESA Takes Priority?)
So the law seemed settled. Flood control was the priority of the system, and then any
other actions taken by the agency would seem to require following and prioritizing the health of
the anadromous fish in the basin under the Endangered Species Act. Behind that, one would
look to the statutory mandates for local dams, and the Bonneville Power Act to determine which
system activities would be allowed and which would not be. Power and irrigation, however,
were both clearly subordinated to the Endangered Species Act. Or so one would think.
But on April 3, 2007, BPA and the Army Corps of Engineers ran into a problem. The
following discussion comes mainly from an opinion and order issued by Judge Redden. There
had been rains in the basin, or at least rain had been forecast, and so the reservoirs had been
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emptied to meet the flood control drafts, leaving less water in the dams. At the same time,
Portland Oregon and the area to which the dams supplied power had provided a higher demand
for electricity than was expected. BPA, which is allowed to market and wheel its power as a
wholesale distributor also had entered into agreements to supply power to other utilities at low
rates. Finally, equipment failure led the Little Goose dam to follow below minimum operating
pool, taking away some of the generating capacity that BPA had been relying on. BPA was over
extended and overcommitted, and simply did not have enough power to meet the demand. Even
attempting to buy the surplus power from others, but the cold weather prevented them from
getting it. They also thought about declaring an emergency, but could not because the definition
of that event was not met.
BPA was stuck between a rock and a hard place: they could either violate the BiOp,
which required that they operate their turbines within at most one percent of peak turbine
efficiency, which is not peak capacity, and keep more water in the reservoirs to meet demand for
power, or they spilled water over and ran the turbines at less than peak capacity and would be
unable to meet their power commitments, but they would be protecting their fish. Presumably,
money damages and lawsuits would follow, for BPA and for others. Also, according to the
historical weather records, in Portland and the surrounding area that day it was cold and rainy,
and who knows how long or what would happen if power failed. Perhaps the power outage
would have led to pneumonia and death for some residents of the area. Who knows?
Judge Redden received an anonymous phone call claiming that BPA and the other federal
agencies were putting power generation ahead of protecting fish and violating their own court
orders in April. His investigations led him to learn the facts just laid out above. Judge Redden
was incensed, and took the chance to call to task all of the parties that he could. Interestingly,
BPA has a special jurisdictional review that requires that any claims against it relating to its
compliance with the Endangered Species Act be brought in the Ninth Circuit. So Judge Redden
could not actually castigate BPA, but given the principle of synchronization, his actions against
the BOR and Corps would have similar effects. So he issued order on Mary 23, 2007 to “clarify”
what is expected under the ESA, preaching from the bench.
First, Judge Redden notes that the task of administrating “the FCRPS is ‘an incredibly
complex task’ and that BPA was faced with a ‘difficult choice’ on April 3, 2007.” But, according
to the judge, it was an Hobson’s Choice in that BPA was free to make any choice that they
wanted so long as it was to put the interests of the salmon and trout first. As Judge Redden
notes, as a result of BPA’s decision, “ESA-listed salmon and steelhead paid the price. This, the
law does not permit.”
After going through the list of options to make clear that BPA must comply with the
terms of the BiOp and other agreements. It cannot operate outside those stipulations unless some
other terms of the agreement authorize them to make that decision. Then, Judge Redden calls
BPA to task issues an opinion that “is not a product of anger, but frustration” and gives his
admonishment on the ESA:
“The ESA is the law of the land, and has been since it was signed into law by
President Richard Nixon in 1973. Its mandate is clear: federal agencies must
‘afford first priority to the declared national policy of saving endangered species .
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. . It is clearly written because the drafters sought desirable goals, and knew it
would require some sacrifice to save our nation’s precipitously diminishing
species. The duty of federal agencies under ESA has been litigated, and
reaffirmed in federal courts across the country. Proposed amendments to the Act
have repeatedly failed, and its regulations stand firm. We might as well get it
right.”
Judge Redden is correct in many observations. Yet, one wonders just how well and how
appropriately he captured the essence of the problem and the sense of anger that would have
come from members of the public if his course of action had actually been implemented on April
3rd. If, on a cold and rainy day, BPA, which provides about half of the power in the region from
its hydroelectric, which has provided power at half the cost of the national average and attracted
industry to the region, were not allowed to utilize or supply that power, and the region had to
shut down to increase the likelihood that some fish might survive, I think riots might show up on
the streets. I think that the hue and outcry over that decision might have made at least one of
those “proposed amendments” not just a proposed amendment, but an actual one. If there is one
region and one set of species that would challenge the public conception of Endangered Species
Act, I think that the Columbia River Basin Salmon and Steelhead Trout would be it. There are
two major cities in the region which receive large portions of their power from BPA, and which
are some of the most important for the new economy, and for national defense.
But, that is the path down which the agency and the courts are going. As mentioned
above, NOAA issued a 2008 BiOp under the Bush Administration. NWF and others amended
their complaint against the federal agencies involved because they claimed that the BiOp did not
take into account the pressing effects of global warming on the species. In effect, because global
warming will lead to lesser snowpack on the mountains that feed the rivers, the flows under
which the anadromous fish will be running up and downstream will be impacted. In 2009, the
Obama Administration agreed with NWF and other plaintiffs, and stated that it would be issuing
a new BiOp that would supplement the comprehensive one in 2010. That document has been
issued.
Conclusion
If there is one thing about the Federal Columbia River Power System and the laws that
implement it, that principle would seem to be that which says that the science is still evolving,
and while the law is clear, that fish come before anything except flood control, just how to best
protect the fish keeps changing. As the energy topics and the electricity generated at the dams all
along the river have shaped the region, and are increasingly being seen as answers to electricity
shortages outside of the region, including into California. And while Judge Redden seems to be
sure that the ESA is the law of the land and won’t change, I wonder if he truly is correct, and if
the people of Portland and other areas will share his love for the salmon running upstream if it
means that their neighbors and relatives are dying of pneumonia because the power was shut off
to make sure enough water was flowing. I am not convinced that a result that leads to that type
of suffering will be seen as a law and an action that “gets it right.”
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