Noah’s Ark on the
Columbia River
WHO GETS PRIORITY OVER THE WATER IN
THE COLUMBIA RIVER BASIN
Columbia River Basin
Four Competing Interests
Flood Control
Hydroelectric Power
Endangered Species of Fish
Irrigation
Enabling Statutes of Dams
 Each dam has its own
enabling statute that sets
forth the uses for which it
was built
 Each dam is was set up to
control flooding on the
Columbia, which can be very
damaging
 Other uses for which it was
authorized include power,
irrigation, and recreation
Two Flood Seasons
 On the upper Columbia,
which runs through the
arid plains of Eastern
Washington – Winter
snow run off
 West of the Cascade
Mountains, the lower
Columbia, rain from
winter storms is the
biggest source of water
and leads to flooding
Three Seasons Of Challenge
 Fall/Winter – in fall, smolts still running down, need to
get flood control ready for winter rains west of the
Cascade; in late fall, snow falls get upper basins ready
while dams are emptying to supply winter heat; lower
reservoirs collecting flood water from winter rains
 Spring – salmon start running; higher water levels as
snow melts on upper river, lower has to keep putting
water through to help salmon up
 Summer – salmon still running up the river; smolts
starting to be washed; must have high water flows; works
okay as well to generate AC; but also need to be refilling
the dams for next year and for fall operations
Endangered Species Act
 The “granddaddy of them
all”
 First passed in 1973
 Requires that any U.S.
Government action be
analyzed to see how it hurts
endangered species
 Several types of fish in the
basin are endangered
Endangered Species Act
 Requires that “each Federal agency shall . . . Insure
that any action authorized, funded, or carried out . . .
Is not likely to jeopardize the continued existence of”
an endangeared species or to harm it’s habitat. 16
U.S.C. 1536(a)(2)
 Further, it requires that a recovery plan is put in
place to ensure the “conservation and survival” of the
endangered species U.S.C. 1533(f)
Endangered Species in the Columbia
Snake River Sockeye Salmon
2. Spring, Summer and Fall
Chinook Salmon
3. Snake River Steelhead Trout
4. Columbia River Steelhead Trout
13 fish species in total
2
1.
3&4
1
Priority of the Endangered Species Act
 Each of the dams that are administered by BPA has
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their own enabling statute
The number one reason each damn is built is Flood
Control
Second priority is the Endangered Species Act –
every operation other than flood control must be
carried out to save the fish in the river
Third is power production for BPA
Irrigation
Recreation
2008 Biological Opinion
 A 2008 Biological Opinion
issued by the NOAA Fisheries
guides the operation of the
entire system of dams
 National Wildlife Federation
Immediately filed suit,
challenging the sufficiency of
the 2008 BiOp
 Main claim – didn’t include or
factor in global warming’s
impact on the fish
 The case is National Wildlife
Federation v. National Marine
Fisheries Service, 3:01-cv00640-RE.
2010 Supplemental Opinion
 As a result, in 2010, NOAA
issued a new BiOp.
 National Wildlife Federation
took BPA, Army Corps of
Engineers and Bureau of
Reclamation to court to make
sure that it is still applied
 But the 2010 Supplemental
applies and dictates the “rule
curves” by which the system
has to operate.
Irrigation
 Irrigation necessary to
turn the desert lands east
of the Cascades into
agriculture
 Irrigation takes out 6% of
all Columbia River Basin
water supply; and takes
out 9% of all water
following over the Dalles,
Oregon, the measuring
spot for adequate flows
Bonneville Power Administration (“BPA”)
 Federal Agency that is tasked with selling
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the power that is generated by the dams
on the Columbia River
Coordinates and markets power among
federal dams and then among privately
owned dams
Also investing heavily in wind power and
thermal generation plants to meet
growing needs
At times has to give away power because
of the volume of water coming through the
dams – interconnected on the grids
Spun off its transmission division as
FERC demanded
Priority of Non-Power Uses
 Accomplished through the Pacific Northwest
Coordination Agreement
 Members of the group include:
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Federal Agencies
Investor-owned utilities
Municipal Boards
Public Utility Districts
Private companies
Synchronization
 As part of the Pacific
Northwest Coordination
Agreement, the planning
follows a goal of
Synchronization
 Synchronization means that
for purposes of planning,
the entire system is treated
as if it had one owner, even
though it is split among 17
companies.
2001 Drought Stresses the Agreement
 In 2001, Bonneville
Power announced that it
would be offering
farmers up to $330 an
acre for each acre of land
they didn’t plow
 Did this so that they
could keep using more
water without diverting
it to irrigation
 Drought had kept flow
levels very low
Preliminary Orders
 The Court in NWF v. NMFS continues to issue
preliminary orders guiding the operations of the
system since 2006 in the spring and summer
 In 2005, the court allowed the Fish and Wildlife
service to kill Sea Lions in Oregon because they were
eating too many salmon
 A 2010 consent order required that summer
operations that followed the 2008 opinion and a
supplemental opinion
So which wins?
Cold Winter Weather
People?
Fish and Endangered
Species?
O
R
2007, BPA Puts Power before Species
 On April 10, 2007, the court
overseeing NWF v. NMFS
received an anonymous phone
call saying that BPA was putting
power before fish
 Court held a hearing, and
determined that they had
Big, Bad, BPA
 On April 3, 2007, a late cold snap was moving through
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the Pacific Northwest
Reservoirs had been emptied to get them ready to control
flood waters
And BPA had agreed to sell power under contracts
thinking it had a surplus
BPA also had an equipment failure at a dam
As a result, BPA ran more water through their hydroplants than they could under the BiOp then in effect
Court issued an opinion reprimanding them, NWF v.
NMFS, 2007 WL 1541730 (D. Or. May 23, 2007).
Well, Which Is it?
 “I recognize that operating the FCRPS
is ‘an incredibly complex task.’”
 “BPA’s choice . . . to . . . sacrifice the
biological needs of listed species to
satisfy its sales commitments to
customers was wrong.”
 “The ESA is the law of the land . . .
[i]t’s mandate is clear: federal agencies
must ‘afford first priority to the
declared national policy of saving
endangered species.’”
 “We might as well get it right.”
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NWF v. NMFS,
Judge James Redden