Judge Rules Dams Don't Break Water Lawby Associated Press
The Spokesman Review, January 14, 2003
GRANTS PASS, Ore. -- A federal judge has ruled the Army Corps of Engineers is meeting its legal obligations under the Clean Water Act for operating dams on the lower Snake River in Washington, despite evidence the river gets hot enough to harm endangered salmon.
The ruling Thursday by U.S. District Judge Helen Frye in Portland was a setback for environmental groups and others hoping to build pressure for the federal government to dismantle the four dams on the lower Snake to help struggling salmon runs by restoring natural conditions.
"The corps did the bare minimum necessary to defend itself in court," said Jan Hasselman of the National Wildlife Federation, the lead plaintiff in the case. "Unfortunately, the court ruled that the Army Corps' bare minimum was good enough, but salmon are still in hot water."
Judge Frye found that by following steps outlined by the National Marine Fisheries Service in its 2000 biological opinion on Columbia Basin dam operations, the corps met the demands of the Clean Water Act.
"This particular issue was whether we acted in an arbitrary and capricious manner," said corps spokeswoman Nola Conway. "The court found we did not. We make decisions based on the best science and engineering available and we represent the best interests of the American taxpayer while protecting natural resources."
In preliminary rulings in this case, Frye had found that there was evidence dam operations violated the Clean Water Act by warming the river above 68 degrees, the temperature ceiling for salmon. She also found no evidence the corps was doing anything to change the situation.
In this final ruling, Frye wrote that the case was not about enforcing the Clean Water Act or the Endangered Species Act, but whether the Corps of Engineers was meeting its legal obligations. When the corps adopted the 2000 biological opinion for dam operations in its 2001 dam operations plan, its legal obligations were met.
"The 2001 (dam operations plan) recognizes that there are additional measures to reduce water temperatures that may be required by the Clean Water Act and addressed in an appropriate water quality plan, but not essential for the survival and recovery of the listed species," Frye wrote.
Twelve runs of salmon and steelhead listed as threatened or endangered species pass through the four lower Snake River dams, which produce hydroelectric power, allow barges to haul goods from Lewiston, Idaho, to Portland, and provide water for farms and cities.
Still pending in U.S. District Court in Portland is a challenge to the 2000 biological opinion, which outlines ways to restore healthy salmon runs short of breaching dams. The outcome may determine whether the dams remain or must be breached.
If that challenge is successful, environmentalists may revisit the Clean Water Act case, said attorney Todd True of Earthjustice, the environmental public interest law firm handling the case for plaintiffs.
Besides the National Wildlife Federation, the plaintiffs include the state of Oregon, which supported dam breaching, and the Nez Perce Tribe, which holds a treaty requiring the federal government to provide healthy salmon runs.
Actions taken by the corps to benefit salmon include releasing cold water from the depths of reservoirs behind Libby and Dworshak dams to cool the river in summer, storing more water behind dams for later release to benefit fish, and lowering reservoirs during the spring migration so river currents are faster.
The corps is exploring ways to change the water releases to lower water temperatures even more, said Dave Ponganis, regional Endangered Species Act coordinator for the corps.
Conway said before the dams, temperatures recorded in the lower Snake were as high or higher than found now, but since the dams were built the river heats up more slowly and cools down more slowly.
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