Loyola University Chicago School of Law, JD 2019
The state of Washington is proposing new water quality regulations in an effort to encourage growth to the salmon population. The campaign against the dams in the Columbia and Snake river basins has been fought for decades and continually struggles to balance the environmental impacts with industry and energy. This regulation is the newest strategy to attempt to strike a balance between the environmental concerns and the industry concerns. Further, as more attention is given to the dwindling population of killer whales, many are calling this an emergency requiring immediate action. This action is a timely response to the recent calls to action.
Calling for a Change
The dams in the Columbia River Basin have been previously managed by agencies within the federal government. However, in recent years, federal courts have ruled that these agencies are not doing enough to protect the salmon from warming temperatures and called for major changes in dam management. These rulings have led to new plans to be produced to protect the salmon population, but the plans continue to fall short.
The dams have been noted as the main threat to salmon and orca population, and many have called for the breach of these dams, including a federal court which stated removal must be considered as an alternative under the Endangered Species Act. The Ninth Circuit Court of Appeals further stated that more spillover was necessary during the baby salmon migration and that a new plan taking these factors into account should be implemented by 2021. The new standards have the potential to bring the dams into compliance with these court orders, if successful in restoring the salmon population.
Governor Jay Inslee in March 2018 issued an executive order calling for immediate action from state agencies, and further assigned an unprecedented investment to saving the orca population in the newest state budget. This shift from virtually unchecked federal management to the state calling for more control shows the importance of these rivers to the state and the awareness of the necessity for better dam management.
The proposed changes would create amendments to the state water quality standards to require lower levels of total dissolved gas (TDG) in water held behind dams. In order to comply with the new levels, federal, state, and privately run dams would need to allow more water to be spilled over the dams during the salmon runs. Flow increases are only to be increased during off-peak times and only during the months of the spring salmon run. Increasing flow would allow for more young salmon to pass the dams and reach the resident orca population. This draft rule includes a three year testing period to see if the increased spillover has the intended effect of lowering the water temperature and increasing the salmon run.
Consequences of Change
Hydropower accounts for about 75% of Washington’s electricity and further the dams provide support for irrigation, flood control, and barge transportation on these working rivers. Increasing spillover can cause reservoirs to be at lower levels and may be unable to provide the support needed to match the current demand. With that, increasing spillover does not limit the amount of power that is generated by the dams and since the spring runoff is the highest water levels, the only changes to industry would be impacts that may come in the drier months of late summer and fall.
On the other hand, the draft environmental impact statement issued by the state Department of Ecology states that the analysis of previous migration and flow patterns indicates that by increasing flow and lowering TDG levels, more salmon are able to survive and make their way into the ocean as the main food source for orcas. While orcas and salmon have remained on the endangered species list for decades, this is the most drastic action that has been taken for their protection. Salmon have long been touted as the key to survival for orcas, and further are a major component in many Northwest Tribal cultures. Due to the importance of salmon for ocean ecology and the people of the northwest, environmental groups argue extreme measures should be taken.
The question posed by Ritchie Graves, head of the hydropower division for the West Coast region at the National Oceanic and Atmospheric Administration, on the actual ability to lower river temperature can only be answered through the implementation of the new policy. He claims operators are already doing all they can to lower temperatures, and that the presence of other factors such as natural warming patterns and climate change make these new temperature goals impossible to reach. Failure of increased spillover, as the preferred alternative presented in the 9th Circuit Court amended opinion, may provide grounds for more extreme actions to be taken to come into compliance with the Endangered Species Act for protecting salmon and orcas. This could position removal as potentially the most equitable option for restoration, as contemplated by the court in 2016.
Public comment on the rule making will remain open through the end of February 2019, and a final rule is expected to follow.