Judge says Corps Complied with CWA
by Bill Rudolph
A long running lawsuit filed by the National Wildlife Federation and other environmental and fishing groups that accused the Corps of Engineers of Clean Water Act violations came to a close in early January when federal Judge Helen Frye ruled in favor of the federal agency. Plaintiffs had alleged that Corps' operations of lower Snake dams created illegally high water temperatures and dissolved gas levels.
On Feb. 2001, Judge Frye had granted summary judgment in favor of the plaintiffs, saying it was impossible to determine if the Corps complied with the CWA because earlier records of decision that governed operations did not "explicitly address" the agency's obligations under the CWA.
But the judge said Jan. 10 that the latest record of decision (2001) which governs dam operations under the newest BiOp takes into account such obligations. Frye said the BiOp calls for the Corps to develop water quality plans to help it comply with the CWA, therefore the agency did not act "arbitrary and capricious."
Environmental lawyer Todd True of Earthjustice said plaintiffs haven't decided whether to appeal. NWF attorney Jan Hasselman claimed the Corps did the "bare minimum to defend itself in court. Unfortunately, the court ruled that the Army Corps' bare minimum was good enough, but the salmon are still in hot water."
Portland attorney James Buchal, who represented defendant-intervenor Columbia River Alliance, said the case was based on "an incredible notion that Congress intended to regulate hydroelectric dams when it passed the Clean Water Act."
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