Energy Law, Professor Palmiter

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.

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 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 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 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.”