Can anyone tell me the reason for Tacoma City Light raising the outflow from Mayfield Dam during the week and lowering it just in time for the weekend?

I think the electricity is worth more on the weekdays.

the power requirements are greater during the week, so that means more water through the turbines.

Sure makes the river more challenging.

Almost fun to watch the crackers run over the gravel bar down below BC.

Here the deal!

Power rates are higher then hell right now and its going nowhere but up! Tacoma is pulling huge amounts of electricity to satisfy their rate payers during the working days of the week and shutting it down on the weekends. Tacoma could care less about fish or sport fishing! Tacoma is generating its own power instead of paying the "premium price" for power from the power grid during the week. You can expect to see this happen every time it gets this hot!

There is only 1342 cfs coming into the Cowlitz Fall Reservoir right now. The Cowlitz Fall dams is "banking" that water until they can generate power and operate there turbines at about 2900 cfs. Tacoma is running their projects right now on what is coming in at Cowlitz Falls plus what they can "bank" when they drop the flows on the week ends when electricity demands are low.

It 1000000% about Tacoma Power's greed and need to make money for themselves and to have "cheap power" for their own rate payers.

That is what's really going on with the water flows.

Cowlitzfisherman

You're right about that Cowlitz, I called Tacoma Power today and they gave me the same answer you did.

As others have indicated, Tacoma has a higher energy demand during the week than on weekends, so they generate more on weekdays which results in higher streamflow.

I'm not sure I buy into the money and greed allegation, as it seems to imply that Tacoma "should" do something different than what it does. What would you have them do differently, and why?

Tacoma built and operates the dams to provide electricity. The way that makes the most sense for them is to store water when they don't need energy and generate when they do. Tacoma's interest is compromised by regulations. It would make energy and ecomomic sense for Tacoma to shut off Mayfield and dry up the lower river when they don't need the energy. Of course, they're not allowed to do that. They are required to provide minimum streamflows to protect fish migration, spawning, and rearing. Perhaps they "should" provide different flows than they do, but persuasive arguments would have to be made.

As it is, Tacoma releases more water from Mayfield during the late summer and fall than flows into the reservoirs. If Tacoma were required to run the dam "like a natural river", then we would see the lower Cowlitz flowing as little as 600 cfs at times, instead of the usual 2,000 or 2,500 cfs. That would be quite a sport to run your sled in the river at 600 cfs!

With major dams, you get some good things and you get some bad things. You get higher summer flows usually and lower peak winter flows. Cooler summer water temperature and warmer winter water temperature. Less salmon redd scour because of reduced flooding. Loss of side channel rearing habitat due to less flooding. Loss of spawning and rearing habitat and access due to dams and reservoirs. Fish usually, but not always, lose more than they gain. Fishermen, well it depends. On the Cowlitz, there aren't many wild salmon or steelhead. However, there much more likely than not, are more salmon and steelhead available to catch because of the Cowlitz mitigation hatcheries than there would be today if Tacoma had never built their dams.

Oh, and Tacoma gets electricity. Tacoma got a good deal, no question in my mind. Wild fish got a very bad deal (extinction). Fishermen got a mixed deal. More fish to catch, but a loss of wild fish and the quality experience that some anglers attach to that. A more navigable river during the summer and a less navigable and fishable one in winter.

Now you know why Tacoma changes the river flow and then some. Should Tacoma do it differently? Why or why not?

Sincerely,

Salmo g.

Wow!

It's amazing how some people will stand up in support of Tacoma Power! It would not be a good think for you to be the guest speaker at fishing event in South Lewis County

Sometime Salmo we really disagree about issues, especially when you come to Tacoma's defense! I guess that goes with your job!

It really doesn't matter if you "…don’t buy into the money and greed allegation, as it seems to imply that Tacoma "should" do something different than what it does.

You asked us; "What would you have them do differently, and why?"

You know that they were asked to change their flow regimen but they didn't! Any you know why…it was money and greed and had noting to do with saving the fish! They were asked to maintain the existing lower winter flow agreement that they had in the last license to "protect winter run steelhead sport fishing" on the week ends…but they said no and you guys agreed! And one of the reasons why they said no, was because you guys (yes that means you) went along with there scheme to discontinue the early run stocks of hatchery steelhead!! If they didn't have to worry about fishermen fishing for those fish, they didn't have to change their flows regimen. So that is one thing Tacoma could have done "differently"!

That was all about money and nothing else, and you guys eat it up like it was a steak! Oh yea, I forgot the Cowlitz only has one "pure" run of steelhead according to NMFS….right?

Well, for another thing, they should be running their project quite a bit different then they are right now. And your agency can also take much of the credit for how Tacoma is running there project this year (you agreed to their proposed flows). All one has to do is to go look at what Tacoma is doing right now and compare it the way that they have historically ran it. Obliviously there is a big difference if you review the flow chart on:
http://waterdata.usgs.gov/wa/nwis/uv/?site_no=14238000&PARAmeter_cd=00060,00065
You can spin it all you want, and you can say its been a dry year, or its been a wet year, or say whatever you want, buy the long term graphs show that we are now being screwed by the loop holes that the agencies have approved in that "stinking rotten" agreement that you guys signed on to and helped approve.

You're not right when you said; "They are required to provide minimum stream flows to protect fish migration, spawning, and rearing. Perhaps they "should" provide different flows than they do, but persuasive arguments would have to be made."

To bad you didn't come to the week long appeal hearings on Tacoma's 401 permit because the "arguments" were made, and made well.

The flow agreement only protects fish for some months of the year! From July1 to August 14, Tacoma must maintain 2000 cfs for navigational purposes, and that has noting to do with fish protection. And it only protects fish from August 16 to September 15, "if" Tacoma runs the river at flows greater than 5000 cfs continually for more than 5 consecutive days straight. That's the only time during the summer months that Tacoma has to "protect" fish and in the mean time they can jack the water up and down until your light blink! You know as well as I do, that there was no science used to come up with the minimum flows of 2000 cfs… It was 100% for navigation purposes.

You go on to say;" If Tacoma were required to run the dam "like a natural river", then we would see the lower Cowlitz flowing as little as 600 cfs at times, instead of the usual 2,000 or 2,500 cfs. That would be quite a sport to run your sled in the river at 600 cfs!"

Well, every natural free flowing healthy river in the states also gets down to those kind of flows and look at the amount of wild fish that they can produce. Low water is not always bad for a river; in fact, one of the main reasons why the Cowlitz has such a huge disease problem with C-Shasta is most likely do to Tacoma not allowing the river to reach its natural summer times lows which would help kill most of the those tiny polychaete worms that are the carriers of C-Shasta. Another prime example is the effects that "Low-temperature disease" has on the Cowlitz fish. Both conditions are directly related to Tacoma's storage of large amounts of cold water being drawing from large deep turbine intakes, such as the ones at Riffe Lake.

So low water has its ups and downs and its all part of a natural healthy river system. Your right Salmo, about it being hard to run a sled up and down the river at summertime lows, but it would sure be fun in a drift boat! Not that bad of a tradeoff for some fishermen! So what other great benefits has Tacoma done for us?

I find it extremely hard to believe that you can say;" However, there much more likely than not, are more salmon and steelhead available to catch because of the Cowlitz mitigation hatcheries than there would be today if Tacoma had never built their dams"

How can you support such a statement? And if you can, please be very specific on your facts so that I can verify where you got that information from (sounds like it's right out of Tacoma's mouth!).

Yes Salmo, we really do have different view points about Tacoma Power and that is probably why you think that the Settlement was such a great deal and Tacoma though you did such a great job!

Obviously there is a big difference from the person who just sits at the "table and negotiates the settlement" compared to the person who has to live with the results of what that other person has done.


Cowlitzfisherman

CFM,

I thought my post might frost your pumpkin. It seems like you believe it’s Tacoma’s responsibility to do those things you deem right for the fish or the fishermen. And if I believe differently than you, I must be in Tacoma’s hip pocket. Frankly, I don’t give a rat’s a** about Tacoma, one way or the other. My job doesn’t require that I defend Tacoma nor any state nor federal agency. I need only defend the work that I do. I don’t mind speaking at fishing related or other events in Lewis County or anywhere because I speak to inform, not to make people feel good, same as with posting here.

Tacoma’s responsibilities are spelled out in the Federal Power Act (FPA) and other applicable laws. If you believe Tacoma’s responsibilities are something different, you set yourself up for disappointment.

Yes, I know that Tacoma was asked to change the Cowlitz River flow regime. I also know that change would only come about if persuasive biological and or legal arguments were made. I think the reason changes were not made is because the arguments were not biologically or legally persuasive. The fact that you argued doesn’t make you right. And if you were right, that often still isn’t enough. You have to be right and biologically and legally persuasive under the conditions of the FPA and other applicable laws. I could not require a change in Tacoma’s flow regime unless I could produce evidence meeting the “best available science” standard that Tacoma’s flow proposal does or would harm fish (not fishing). None of the fish and wildlife agencies have any authority to require stream flows that are beneficial to winter steelhead fishing. Resource agencies can only recommend flows that protect spawning, incubation, rearing, and migration. Flow recommendations for good fishing opportunity carry very little currency, by comparison.

Sheesh, NMFS doesn’t consider the decision to rear fewer early winter steelhead a scheme. Also, please be real. NMFS and other agencies don’t maintain that there are any pure steelhead stocks in the Cowlitz. NMFS concern is that Tacoma fully mitigate project effects on the steelhead run. That is, NMFS wants there to be at least as many steelhead returning to the Cowlitz as there would be if Tacoma’s project didn’t exist. NMFS wants that because that is what can be legally had under the FPA and subsequent case law. NMFS doesn’t care, nor do I, how many early steelhead Tacoma rears. NMFS wanted an increase in late winter steelhead for recovery purposes because WDFW says they are dirivitive of the native Cowlitz stock. No one can prove that’s not correct, which isn’t the same as saying it is correct. Again, the best available science, which may not be much, indicates that the late winter steelhead at the Cowlitz trout hatchery are the closest relative to native Cowlitz steelhead. State and federal policies pretty much dictate that the late winters be the “recovery” stock for the Cowlitz. Don’t like it? Bring me a scientifically persuasive counter proposal. If it’s your opinion that the locally adapted early winter steelhead or Skamania fish are just as native as the late winters, I can tell you that won’t cut it. And you already know that I’m partial to Skamania fish, but that’s for purely selfish reasons, not biological ones.

Just because Tacoma is running the river differently today than historically doesn’t mean they are doing something wrong. I really don’t care. What I care about is whether Tacoma’s flow manipulation harms fish. If I cannot produce evidence that Tacoma is harming fish, then I’m stuck, and you’re stuck. Thinking it should be different doesn’t carry any weight with the decision makers. So how is Tacoma’s flow screwing you? What should they do differently, and why? If you cannot show that they are harming fish, you’re out of luck.

The 2,000 cfs Tacoma provides during the summer is greater than the unregulated, natural river flow. All parties to the proceeding favored the higher summer flow as beneficial to fish, and in my experience that has always been the case, so I agreed with it. I didn’t note any opposition. Now you’re saying they should instead drop the river to lower, natural, flow levels? This is the first I’ve heard about low flows being the way to fight C-shasta. The consultants told me that higher winter flood flows would be the natural, effective way to reduce C-shasta problems.

Low-temp, or cold water, disease isn’t likely caused by the deep turbine intakes at Riffe. River water would be colder during the winter in an unregulated, no-dam, situation. Winter water temps are warmer on average due to reservoir storage, so causing cold water disease seems like a stretch to me. If there’s new information, I haven’t seen it.

Yes, I too marvel at the divergence of opinion regarding the number of fish that would be present in the Cowlitz absent the power-dams. The Cowlitz is no different than most western Washington rivers, with or without dams. The watershed is extensively degraded by the effects of urbanization, dikes, levees, sub-urban and rural development, agriculture, roads, and forestry. These developmental effects drastically reduce the fishery productivity and capacity of rivers, completely independent of the additional adverse effects of dams. The Cowlitz basin in degraded, not pristine. It doesn’t even come close to the class of habitat represented by the coastal Olympic peninsula rivers. It’s far more like Puget Sound rivers in the extent of development and habitat degradation. What makes you think it would produce more wild salmon and steelhead than the hatcheries presently do?

Here’s what makes me think it wouldn’t be such a hot river:
No westside river has a wild spring chinook run exceeding 3,000 (ave.). What makes the Cowlitz so special that it would - in this century, not the last?
No lower Columbia River tributary even has a viable wild coho run due to commercial fishery management. Why would the Cowlitz?
No lower Columbia River tributary has a healthy wild steelhead run (they’re all ESA listed!). Why would the Cowlitz?
Only the NF Lewis has a healthy wild fall chinook run. Cowlitz falls have tule timing. Commercial fishing management and sport fishing regulations dooms them to a low level. Why would Cowlitz be an exception?

What are the compelling reasons to believe that if there were no dams on the Cowlitz River that it would host large healthy runs of wild salmon and steelhead? I find none. No undammed lower Columbia River tributary is rated as having healthy, abundant, runs of salmon or steelhead. To think that if there were no dams on the Cowlitz, that the Cowlitz would be an exception, strikes me as complete fantasy.

I think there is a big difference when people base their expectations on opinions rather than facts and law. I don’t think we are so different about wanting fish and fishing opportunity. I think the difference is that my expectation is based on what is available to us under the law. It seems to me that your expectation is based on your opinion of how it should be, rather than how it is under the law. As I indicated at the outset, that sets you up for disappointment.

Sincerely,

Salmo g.

Salmo, thanks for the reality check. I have never seen CFM in action personally at one of these meetings but believe that if he presents his case in person the way he does on this board - your last line is 100% accurate.

Aunty, my apologies for seeming arrogant. That was not my intent. I will admit however that my cheeks are chapped with CFM right now. In the thread regarding the guides being arrested, he impugned my ethics publically (the actual term was that I screwed someone). Now, he doesn't know me and I don't know him - but one thing I do know. I don't accuse someone of something unless I KNOW it to be true. And I would never ever make the first accusation in a public forum. I believe those tactics go beyond "rough around the edges". Even though we are somewhat anonymous on this board, I do take personal offense at being accused by someone who does not know the facts nor do they know me. I strive to conduct my personal and professional business with a high degree of ethics. Maybe I'm too sensitive, but I do believe that in the final analysis all somebody has is the strength of their word.

Again my apologies for coming off arrogantly.

Aunty, viewed in as much clarity as I can muster, you are right, my comments were much more generic than specific. I do have an interest in the debate however, I grew up near the Cowlitz when it was a free flowing river and believe that the discussion of dams and mitigation is germane to many rivers in our state (and elsewhere for that matter) But, you are correct, CFM has pi**ed me off and I, like most, am not at my most coherent or germane when I'm in that state.

Thanks for understanding - can we all sing Kumbaya now?

Aunty,

Just to be clear, I have the highest respect for CFM, rough around the edge or not, and am proud to consider him my friend these last 11 years or so. We are both dedicated to the fishery resource, each in our own way. Our disagreements here are seldom about facts, since facts are verifiable. Our opinions occasionally diverge about what is "best" for the resource and our respective interpretations about what we are entitled to under the law. But it's a good arrangement. I think I can constructively inform CFM from time to time, and he damn sure keeps me on my toes! Public service is most satisfying when I can make a positive difference for a resource and when relating to members of the public I serve.

Sincerely,

Salmo g.

Thanks to Aunty, I had to modify this response, and it was written before I had read Salmo newest posting! But nothing has changed, so I will let it run as I had originally posted it. Salmo will understand


Aunty has said it far better than I could (or would) because I would have told you what I think man to man. eddie, You and I are very deferent, and we both must accept that fact

That's all that is needed to be side to eddie by me right now!

But Salmo will not get off so easy!

Salmo is a pretty old friend, and I have known him for well over ten years now. I have told him "how it is" on many different occasions, and for the most parts he respects my opinion even if he may disagree with it at times. And I do the same to him!

So when I get on him like I am about to do, he may not agree with what I have to say, but he will respect my view. I fully expect that he will take quite a bit time and think his way through this post before he replies to what I am about to say.

Your right on Salmo, you did frost my pumpkin….but not for the reasons that you may think! You have spent quite a bit of time in your reply to me and I will not spend a lot of time rebutting what you have stated. I will spend some time on explaining to our board members where you are totally wrong, and show them undisputed facts that you are misleading them. I find this extremely unusual and out of character of you.

You say that "Tacoma’s responsibilities are spelled out in the Federal Power Act (FPA) and other applicable laws"

Well you know as well as I do that is totally a misleading statement. If your statement was true, as you have claimed it to be, then why did Tacoma spend over three years in a "alternative" relicensing process trying to cut themselves a better deal? If it was so "cut and dry" on "what Tacoma's responsibilities" were in the FPA, why then was there such a need for any "Settlement Agreement"?

Please take some time and explain that to the board! (And me too)

Here's one more of your statements that really need to be corrected because you have totally twisted it out of reality! YOU say;

"Yes, I know that Tacoma was asked to change the Cowlitz River flow regime. I also know that change would only come about if persuasive biological and or legal arguments were made. 'I think the reason changes were not made is because the arguments were not biologically or legally persuasive'. The fact that you argued doesn’t make you right. And if you were right, that often still isn’t enough. You have to be right and biologically and legally persuasive under the conditions of the FPA and other applicable laws. I could not require a change in Tacoma’s flow regime unless I could produce evidence meeting the “best available science” standard that Tacoma’s flow proposal does or would harm fish (not fishing)."

Ok, let's go through your statement in some detail! First, National Marine Fishery Service (NMFS) was mandated by the Federal Law to do a "Biological Opinion" (BO) …right?

The BO is the "backbone for NMFS in making any sound legal "biologically decisions", and is their only way to "justify what their decisions are founded upon". Somehow you guys at NMFS short circuited the "public process" and signed onto a "Settlement Agreement" without giving your legal justifications for making the deals that you had made with Tacoma in the Settlement Agreement! Can you explain how and why you did that in some detail?

So how possibly could you expect us, or anyone else, to make any "arguments" or "challenges"against any of NMFS "biological justifications" for doing what they have done, especially after you (NMFS) has failed for over three years now to do what the federal law had mandated you to do? Without NMFS BO, it prevented anyone from changeling them or there actions that justified NMFS's biological reasons that they used to justify the signing of the Settlement Agreement! What a screwed up mess that the NMFS has made!!

And if you think I am wrong - eddie or Salmo, maybe you should both read what FERC has ruled about your failure (NMFS) to do a timely BO.

You're (Salmo) is going to say that they (or you) were "overloaded" and that the Cowlitz isn't the only project that NMFS has to deal with, but no one will buy your story Salmo about it being ok that it's "three year later" and you still havent done the mandated BO! There is NO EXCUSE, and you know it Salmo!!

Please take the time to read what FERC has recently ruled on concerning the failure of NMSF to do what they were mandated by law to do.

Once you have read the ruling, you will also be able to see why "WE" could not make any "legal argument" as Salmo has claimed that we have failed to do. Remember this, because it contradicts almost 100% of what Salmo has stated to the board.

This came directly from the FERC ruling:

Endangered Species Act Consultation:

2. NMFS and Intervenors argue that we erred in issuing our relicensing order before completing formal consultation with NMFS pursuant to Section 7 of the ESA. That section requires every federal agency, in consultation with FWS or NMFS, as appropriate, to ensure that its actions are not likely to jeopardize the continued existence of a listed species, or destroy or adversely modify critical habitat for a listed species. To date, the Commission has been unable to complete formal consultation with NMFS for this relicensing.

3. On April 25, 2001, the Commission staff submitted a biological assessment (BA) to both NMFS and FWS. The staff concluded in the BA that relicensing the project in accordance with the terms of the Agreement was "not likely to adversely affect" the bald eagle and northern spotted owl, but was "likely to adversely affect" chinook salmon, chum salmon, and steelhead trout, as well as their critical habitat. FWS concurred with the staff's conclusions for the bald eagle and northern spotted owl on July 3, 2001. As a result, formal consultation with FWS was not required for those species.

4. For chinook salmon, chum salmon, and steelhead trout, NMFS responded to the staff's conclusions on January 29, 2002, over nine months later. NMFS requested that the Commission delay action on the license application and Agreement until at least September 2002 in order to coordinate formal consultation efforts with those underway at another upstream project, Lewis County Public Utility District's Cowlitz Falls Project No. 2833. Tacoma responded by letter dated February 19, 2002, urging that NMFS issue its biological opinion expeditiously to allow for earlier implementation of the Agreement. On February 25, 2002, Commission staff informed NMFS that further delay of formal consultation was neither necessary nor appropriate. On March 13, 2002, after receiving no further response from NMFS, the Commission issued its order approving the Agreement and issuing a new license for the Cowlitz Project. At that point, the biological opinion was already 6 months overdue.

5. A little over a year later, in a letter dated March 27, 2003, NMFS renewed its request to combine consultation for the Cowlitz River Project with that for Cowlitz Falls, stating that it anticipated being able to begin consultation on both projects by approximately April 1, 2003, with biological opinions to follow within 90 days after an initial meeting with both licensees. On April 18, 2003, staff informed NMFS that it was unable to agree to the extension of time to complete formal consultation for the Cowlitz River Project, and requested that NMFS file its biological opinion within 30 days. To date, NMFS has neither filed it biological opinion nor indicated when it might be able to do so. The opinion is now nearly two years overdue.

6. Under Section 7(a)(2) of the ESA, a federal agency must ensure, in consultation with the Secretary of the Interior or Commerce, as appropriate, that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. When a federal agency determines that a proposed action may affect a threatened or endangered species, it must consult with FWS or NMFS and obtain a biological opinion on whether the action is likely to result in a violation of the ESA. The agency is ultimately responsible for the action, and is technically not bound by the findings of the biological opinion. However, an agency that proceeds with an action in a manner that is inconsistent with the biological opinion runs the risk of having its action found to be arbitrary, capricious, and contrary to law.

7. Both Section 7 of the ESA and the regulations implementing it establish time limits for completing formal consultation. Section 7(b) provides that consultation must be completed within 90 days, unless the agency and FWS or NMFS mutually agree to extend consultation. Extensions of more than 60 days require the consent of the license applicant. Promptly after completion of consultation, defined in the regulations as within 45 days, FWS or NMFS must deliver its biological opinion. After initiation of formal consultation, Section 7(d) of the ESA prohibits a federal agency from making any irreversible or irretrievable commitment of resources that would foreclose the formulation or implementation of any reasonable and prudent alternative measures which would not violate Section 7(a)(2).

8. In Chelan County, we considered whether, in light of these provisions, a federal agency must delay its proposed action indefinitely while awaiting a biological opinion from FWS or NMFS. We concluded that these sections of the ESA, when read together, suggest that, so long as the proposed action does not jeopardize listed species, destroy or modify critical habitat, or foreclose reasonable and prudent alternatives, a federal agency may proceed without awaiting a biological opinion if no incidental taking of listed species is likely to result.

9. In that case, Commission staff had found in its BA that the proposed action would not result in any incidental taking of listed species. This case presents the more difficult issue of whether we may proceed in the absence of a biological opinion when our staff has found that the proposed action is "likely to adversely affect" listed species, and thus might result in some incidental taking. As explained below, our decision to move forward is not without some risk. Nevertheless, on balance we believe that, in view of the unacceptable delay in this case, as well as the existence of a comprehensive settlement agreement designed, among other things, to benefit listed species, it is reasonable to allow implementation of the new license without awaiting a biological opinion from NMFS.

10. NMFS argues that, if the Commission finds that a proposed action may affect listed species, it may not proceed without first obtaining either concurrence that the action is not likely to adversely affect those species, or a biological opinion from NMFS that the action is not likely to jeopardize the continued existence of those species. In support, NMFS cites the Houston case, in which the court held that the Bureau of Reclamation violated the ESA by failing to request formal consultation with NMFS on some species after that agency failed to concur, and by issuing 40-year water contracts while formal consultation on other species was still underway, without awaiting a biological opinion from FWS. The court therefore affirmed the district court's rescission of the contracts.

11. The Houston case is relevant, and it suggests some degree of risk. However, it does not address the issue now before us: whether we may proceed with a proposed action that will have beneficial effects on listed species, notwithstanding the potential for some incidental taking, when a biological opinion is nearly two years overdue and there appears to be no reasonable prospect of receiving one in the foreseeable future. In these circumstances, we believe that we can do a better job of meeting our ESA responsibilities by proceeding, rather than continuing to wait.

12. NMFS argues that the Commission must have written authorization in the form of an incidental take statement that is part of a biological opinion before proceeding with an action that results in incidental taking. In support, NMFS cites Defenders of Wildlife v. EPA. In that case, the court enjoined EPA's registration of strychnine because it would result in incidental taking of listed species, and EPA had not entered into formal consultation or obtained an incidental take statement authorizing the taking. NMFS argues that both the ongoing operation of the Cowlitz Project and the mitigation measures included in the new license, such as the trap-and-haul program for fish passage, may result in the taking of listed species or adverse modification of their critical habitat.

13. NMFS is correct that, by not awaiting a biological opinion, we are proceeding with a proposed action that may result in some incidental taking of listed species, without the authorization that would be provided by an incidental take statement. Unlike Defenders of Wildlife, in this case we have initiated consultation but have to date been unable to complete it. In addition, the measures in the new license are designed to benefit listed species and are part of a settlement agreement that NMFS has signed. By delaying the implementation of these measures, we are failing to mitigate adverse effects to those species that are ongoing. If, by its inaction, NMFS can require us to indefinitely defer our issuance of a new license, we are placed in the difficult position of being required by Section 15(a)(2) of the FPA to continue issuing annual licenses under the terms of the original license, with greater adverse effects on listed species than would occur as a result of project operation under the new license terms, with which NMFS has agreed. Therefore, issuing the new license in advance of the biological opinion, coupled with an appropriate reservation of our authority to make any necessary changes, provides better protection for listed species in these circumstances.

14. NMFS argues that the Commission's reliance on a post-licensing reopener proceeding to address issues that may arise from consultation violates Section 7(d) of the ESA. After initiation of formal consultation, Section 7(d) prohibits an agency from making any irreversible or irretrievable commitment of resources that would foreclose the formulation or implementation of any reasonable and prudent alternative measures. NMFS argues that issuance of the license is an irreversible, irretrievable commitment of resources, and may foreclose the formulation of reasonable and prudent alternatives. However, NMFS does not demonstrate how this might be so. Rather, NMFS maintains that the Commission's use of a reservation of authority to reopen the license to include the results of formal consultation is inadequate under the ESA, again citing the Houston case.

15. In Houston, the court found that a savings clause in the water contracts that allowed for future adjustments was insufficient to avoid a violation of Section 7(d). In this case, however, we are implementing measures that NMFS has already agreed to as a result of the agreement. In addition, we are adding Article 408 to the license to address ESA concerns. Article 408 is a specific reservation of our authority to require the licensee to take whatever action we deem necessary as a result of a biological opinion from NMFS on the effects of the Cowlitz Project on chinook salmon, chum salmon, and steelhead trout and their critical habitat, including, as appropriate, any reasonable and prudent alternatives, reasonable and prudent measures to implement those alternatives, and incidental take conditions. Therefore, we fail to understand how proceeding without a biological opinion could foreclose reasonable alternatives that would be necessary to avoid jeopardy. Presumably, if the measures in the Agreement presented a risk of jeopardy to listed species, NMFS would not have endorsed them. In these circumstances, it seems sufficient to include a reservation of authority that will allow us to impose whatever additional conditions NMFS may ultimately specify in its biological opinion.

16. NMFS argues that failure to complete formal consultation in a timely manner does not relieve the Commission of its substantive obligation to meet the requirements of Section 7 of the ESA. In support, NMFS cites a case in which a district court declined to order NMFS to complete a biological opinion in a specific time frame where it appeared that the agency was working diligently to complete consultation. That is not the case here; by its own admission, NMFS had not yet begun to prepare a biological opinion for the Cowlitz relicensing when it requested an extension some two months ago.

We agree that the failure to complete formal consultation in a timely manner does not relieve us of our ESA responsibilities. However, by proceeding in this case, we are seeking to meet those responsibilities as best we can, given that we have been unable to complete formal consultation with NMFS to date. As we stated in Chelan County, we do not make this decision lightly. We recognize the importance of protecting endangered species and the benefit of having a biological opinion to inform our licensing decisions. We also recognize the strain that the Services are under to complete consultations, particularly in the Pacific Northwest, with far more ESA consultations to conduct than staff to handle them. We stand ready to assist the Services in developing creative solutions to manage their Commission-related workload in a more timely manner. However, when the period specified in ESA Section 7(b) for completing consultation has elapsed, and our action, while possibly entailing some taking, will provide a meaningful benefit to the species under consultation, we do not believe that either the public interest or the listed species are served by the continued delay in our ability to issue orders that will advance the protection of the species in question."

eddie; Can you now see how Salmo's agency(NMFS) has taken away everyone's else's chance to legally challenge the actions of Salmo's group (NMFS)? To bad you didn't spend a day or two going to some of those hundreds of meetings like I have done before you made such an asinine statement about me!

But I guess a guy will do whatever he hast to do.

The facts are, you know absolutely nothing about the Cowlitz, or of its relicensing, or the meeting that have occurred!

Salmo, you said; "Just because Tacoma is running the river differently today than historically doesn’t mean they are doing something wrong. I really don’t care"

That is pretty obvious!

You say;" The fact that you argued doesn’t make you right. And if you were right, that often still isn’t enough. You have to be right and biologically and legally persuasive under the conditions of the FPA and other applicable laws. I could not require a change in Tacoma’s flow regime unless I could produce evidence meeting the “best available science” standard that Tacoma’s flow proposal does or would harm fish (not fishing)."

The lack of the NMFS BO says it all!!

The people for who you work for have screwed us and "YOU" have failed to write the BO in a timely fashion (3 years late and still no BO). By doing that, NMFS has robbed the public of their opportunity to challenge your agency's "unwritten BO" that is needed to support your agency agreeing to the terms, and conditions in the Settlement Agreement!

This is enough for the board to try to understand now, so I will wait for your reply before I write anymore.

Please try to explain how "you guys" didn't screw "us guys" by not writing your BO in atimely matter, and please try to explain how that action has affected every ones else actions.... if you dare.

This will be the "SPIN FACTOR" for you, so take your time ..... I am not done stopping the spin yet!


Cowlitzfisherman

CFM, I accept that we are very different and I will bow out of this discussion because as you correctly state, I know very little about the Cowlitz and even less about the FERC relicensing. However, you and I do not know one another - you don't know what I paid for my charter license nor do you know how much I sold it for. I don't much care if you state your contentions about my lack of ethics man to man or not, the fact is you don't have a clue as to who I am and what I stand for. And I will hold your statements (on this and other issues) to more scrutiny because I am disturbed by your tactics. Is that fair? From where I'm sitting it is. I wish that weren't the case, I do believe that your concerns and passions are real and firmly held. I know that I could learn a lot from you about the Cowlitz. I have respect for Aunty M (even though she and I disagree more than we agree) but will always have doubts about you because of this episode. I'm sure you will survive however as shall I. I'm done fishing for an apology - you clearly can't or won't. I'm not sure you even think what you did warrants one and maybe that's the biggest issue of all. I'm done preaching - it ain't even Sunday yet. I'm out.

Eddie, you say;"

I just can't figure out why you're still so PO about what I said eddie!

It was not me who made these original statements, it was you

Was I to think that you just gave yours away for penuts ???

Cowlitzfisherman

CFM,

The FPA doesn’t spell it out in a cut and dried form. But case law does spell out the concept of “mitigation proportionate to project impacts.”

The settlement agreement provides for modifications required by any subsequent ESA section 7 biological opinion (BO). The analysis of the settlement agreement doesn’t anticipate any major modification of the settlement, but by law, it isn’t precluded.

The ESA requires timely completion of BOs. The reality is that agencies must live within their budgets and resources regardless of other seemingly superceding legal requirements. This isn’t all that unusual, but it’s a lot more visible in this instance. There are BOs that are more delinquent than Cowlitz. No one’s happy about this, but the regulations that govern this stuff would try anyone’s patience.

Ouch! That’s foul taking my “I don’t care” comment out of context. Feels like a cheap political shot.

I cannot do anything about the timeline for NMFS BO. I haven’t written it, and I won’t be; I’m not assigned to it. Someone else will, and it’s being written at this time. Oh, and it’s not 3 years late, although it hardly matters. It’s about 2 years, 3 months late based on the BA date. Still, that’s not the issue. How is the lack of a BO “says it all”?

The BO is but a small part of the license proceeding. All it will do is analyze whether the FERC license jeopardizes the survival and recovery of listed species. Since the species are already extirpated upstream of the Cowlitz dams, the reintroduction can only enhance survival and recovery prospects, not jeopardize. The license does authorize actions that will cause incidental take of listed species. However, in this case, the benefits considerably outweigh the losses to listed fish. I think the BO is necessary to close the book on the license proceeding, but I don’t see how it will profoundly affect the outcome compared to the mitigation actions contained in the settlement agreement - EXCEPT - in one significant way. Issuance of the BO is likely to trigger the clock that causes Tacoma to open up their checkbook and begin spending the serious money that is required to get the new downstream fish passage facilities constructed and in operation. In what other way is the BO going to significantly affect the outcome on the Cowlitz?

I’m sorry if you feel screwed by me, by NMFS, or any other party to the settlement. I think the settlement achieves the objective of fully mitigating Tacoma’s impacts to the fishery resource, which was my goal from the outset of the relicense proceeding. It was never my goal to give you, Tacoma, or anyone else what they believed they should get. If you or anyone had shown evidence that meets the best available science standard that the Cowlitz River would produce more salmon and steelhead, in a without dams condition, than provided for in the settlement, then I wouldn’t have settled for any lessor value.

I won’t be responding further to this thread. I’ve got other personal priorities for the next week or so.

Sincerely,

Salmo g.

Salmo

I know that you said that you were done and won't be able to reply, but you left to many strings hanging, and you also have asked me several questions, so I am answering them now.

You made this statement;" Just because Tacoma is running the river differently today than historically doesn’t mean they are doing something wrong. I really don’t care. What I care about is whether Tacoma’s flow manipulation harms fish."

I made this statement;" Salmo, you said; "Just because Tacoma is running the river differently today than historically doesn’t mean they are doing something wrong. I really don’t care"

Then I made this statement; "That is pretty obvious!"

Now you're telling me;" Ouch! That’s foul taking my “I don’t care” comment out of context. Feels like a cheap political shot.

What did I take out context, or what was my cheap shot? What other context was I to take it as?

You asked me; "How is the lack of a BO “says it all”?"

Like I had said in my last post;"… your unwritten BO that is needed to support your agreeing to the terms, and conditions in the Settlement Agreement!" How was the public going to have an opportunity to challenge the actions that NMFS had taken if there was no BO?

NMFS must have and use sound biological information to support them when thay make the terms and conditions, so if you didn't do the BO, How would anyone know if you used sound biological information?

The reason for NMFS doing the BO first is to "justify "WHY" NMFS is "recommending or purposing" to take such actions. The BO is supposed to show the biological grounds and reasons why NMFS is making such recommendations! It was never meant to be done some 2 ½ years later after the actions were taken, and now will be written in such a way that it now covers up all the "loose ends" that were not biologically sound or justifiable at the time that NMFS took such actions! It's all out of the "legal sequence". It's like getting the carriage ahead of the horse!

It's not supposed to work that way! Better yet, its like building a house and starting from roof down in hopes that it all comes together when it meets the foundation!

You say:" The BO is but a small part of the license proceeding." Well it's big enough to stop Tacoma from receiving a new operating license for 2 ½ plus years! It's big enough that 1 of 3 of FERC Commissioners was so concerned that he wrote a descending opinion that spells out exactly how important a BO is! In fact, this is what he said;

Issued July 18, 2003: by FERC Commissioner Massey:

"As the order points out, the Commission's staff has submitted its biological assessment concluding that relicensing the project in accordance with the Settlement Agreement is "likely to adversely affect" chinook salmon, chum salmon, and steelhead trout, as well as their critical habitat. We can reasonably conclude that there will be some incidental taking. Thus, this case is distinguishable from Chelan County,1 where staff had concluded that the proposed action would not result in any incidental taking.

Although I am highly sympathetic with the majority's frustration that delay in receiving NMFS's biological opinion only delays implementation of a comprehensive settlement agreement designed to incrementally benefit the listed species in the longer term, the law is clear. The Commission is barred by law from proceeding with an action that results in incidental taking without written authorization in the form of an incidental take statement that is a part of a biological opinion. We have no such biological opinion here.

2-Under the Endangered Species Act, if the Commission proceeds with an action without the benefit of the biological opinion, and the action results in an unauthorized taking, the Commission, individual Commissioners, and staff members could be subject to civil penalties up to $25,000 and imprisonment for up to one year. 16 U.S.C. § 1540(a) and (b).

The majority's rationale for proceeding – that the public interest will be better served – has a lot of appeal. Nevertheless, despite our frustration and good intentions, the Commission does not have the legal authority to take this otherwise laudable action.

For these reasons, I must respectfully dissent. "

So the BO is "pretty darn important" and even FERC was very concerned about taking any action without one! It's the only tool that FERC can use to analyze whether or not the FERC license jeopardizes the survival and recovery of listed species."

You say; "All it will do is analyze whether the FERC license jeopardizes the survival and recovery of listed species."

That is true, but it will also draw the conclusion that the so called" Settlement Agreement" does not fully address or protect the "taking of endangered species". And that will lead to possible major changing of the terms and conditions in the agreement.

You also said;" The license does authorize actions that will cause incidental take of listed species. However, in this case, the benefits considerably outweigh the losses to listed fish. I think the BO is necessary to close the book on the license proceeding, but I don’t see how it will profoundly affect the outcome compared to the mitigation actions contained in the settlement agreement - EXCEPT - in one significant way. Issuance of the BO is likely to trigger the clock that causes Tacoma to open up their checkbook and begin spending the serious money that is required to get the new downstream fish passage facilities constructed and in operation. In what other way is the BO going to significantly affect the outcome on the Cowlitz?"

Well Salmo, this is what the "lack" of not having your BO has done, and this is only for the year 2003! A local fishery expert has summed it all up and I will just post his words. They have just been sent to NMFS;

"Michelle,
I see that you are on John Serl's email distribution list for the Cowlitz Falls Fish Facility Weekly Report. He sent the last report of the season out last week. I wanted to call attention to the low percentages of juvenile steelhead, coho and chinook caught by the facility. John reported, "Season mark-recapture FCE estimates (see table) for the 2003 season were improved for steelhead, typical for coho and poor for chinook. Steelhead averaged 68% and coho averaged 43%.

Chinook (mostly 0's) averaged only 13%. Hopefully the radio telemetry conducted by the USGS this year will explain why this average is so low." These collection efficiency estimates were empirically derived through mark-release studies. Any fish not bypassed and collected at Cowlitz Falls either go through the turbines (primarily) or over the spillway and into Riffe Lake.

Any juvenile steelhead and salmon entering Riffe Lake are exposed to significant mortality since Mossyrock Dam is not equipped with juvenile bypass facilities and has deep-drafting penstocks.

To get an idea of the magnitude of the mortality of listed species (juveniles) originating from the upper Cowlitz, John reported that 14,729 unmarked juvenile steelhead and 33,849 juvenile chinook were caught at Cowlitz Falls dam and transported to acclimation ponds at the Cowlitz fish hatchery before being released into the lower river. Applying the above FCE values for 2003, an estimated 6,931 of the 21,660 total unmarked steelhead and 226,527 of the 260,377 total juvenile chinook arriving at the dam were not collected and transported. No mention is made of steelhead kelts; however, the post-spawning mortality of these fish caused by the projects is probably significant.

Fish passage at the Cowlitz Falls and Mossyrock projects is a major problem that BPA, Lewis County PUD, and BPA do not appear likely to resolve in the near future, despite the adverse impacts they are causing. Is there something your agency can do to compel them to improve conditions and stop violating Section 9 take prohibitions?"

Salmo, these numbers certainly show just how large the "take issue" really is at Riffe Lake. And that means that Tacoma is doing the "taking of the endangered species".

Maybe you are right about me feeling wrong that "I" was getting "screwed" Clearly the number of endangered species that are being trapped or killed every year, are the ones that are really "getting screwed"!

Finally, you said;" If you or anyone had shown evidence that meets the best available science standard that the Cowlitz River would produce more salmon and steelhead, in a without dams condition, than provided for in the settlement, then I wouldn’t have settled for any lessor value."

With these kind of numbers of healthy natural raised fish that are being destroyed each year, one could certainly say that "the Settlement Agreement" is not doing what it was talked up to do. Maybe we could get more fish if we had no dams!

I hope now that I have answered your entire set of questions. I am sorry for getting on you personally, but you’re the only person that I know who works high enough up in NMFS to get any results. So don't take it personally when I tend to "jump" on you about these issues. As an old biologist once said;" We are both dedicated to the fishery resource, each in our own way."


Cowlitzfisherman