Court says Snake River Damsby Mike O'Bryant
After determining in an earlier court decision that the U.S. Army Corps of Engineers must comply with the Clean Water Act when operating its lower Snake River dams, not just the Endangered Species Act, U.S. District Court Judge Helen Frye ruled in Portland last week that the Corps' operations do meet state water quality standards.
Environmental groups, which leveled the lawsuit against the Corps in 2000, said the Corps failed to include the costs of complying with water quality standards when considering the economic costs of either maintaining the four dams or in breaching them, and that the Corps was out of compliance with clean water rules. They said they are disappointed with the decision.
"This decision does not change the fact that the four lower Snake River dams must comply with the Clean Water Act," said Nicole Cordan of Save Our Wild Salmon. "Instead, the court states that the Corps' current plan only needs to take steps toward compliance with the Act. If an attempt to comply with the law is as good as compliance, then I guess I'll attempt to pay my taxes."
Todd True, attorney with the Earthjustice Legal Defense Fund in Seattle, said the groups that sued the Corps had yet to decide whether they would appeal Judge Frye's decision, but he sees a partial victory in the three decisions handed down by the judge over the past two years.
"The thing to bear in mind is that the judge did unequivocally hold it as a matter of law that the Corps must comply with the Clean Water Act," True said. "Before, I don't think the Corps believed that."
He added that Earthjustice argued that what the Corps was doing was not meeting the CWA and the judge disagreed. "Now we need to decide what to do next," he said. "Our focus is on improving the conditions for salmon in the river."
Plaintiffs in the case, National Wildlife Federation v. United States Army Corps of Engineers, included the National Wildlife Federation, Sierra Club, Idaho Rivers United, American Rivers, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Washington Wildlife Federation and Idaho Wildlife Federation. True and Kristen Boyles, both of Earthjustice, represented the groups in court.
Frye ruled in March 2000 that the Corps must comply with the CWA and Washington state water quality standards, but she put off her decision on whether the Corps had actually violated the law until she could review administrative records. She ruled Feb. 16, 2001 that the Corps had known of water quality exceedances at the federal dams it operates since at least 1994, but had failed to address the problem in either its 1995 or 1998 Record of Decision (ROD). At the time, she said those RODs addressed the Endangered Species Act, but did not acknowledge the CWA at the four lower Snake River dams. In response, the Corps offered its 2001 ROD, outlining how it would comply with NOAA Fisheries' 2000 Biological Opinion, which the fisheries agency released Dec. 21, 2000.
"In the 2001 ROD, the Corps includes a detailed discussion of the federal laws, regulations and orders that are applicable to the operations identified in the NMFS 2000 BiOp and the USFWS 2000 BiOp, including the Clean Water Act," Judge Frye concluded in her decision.
She also said that the 2000 BiOp contains reasonable and prudent alternatives (RPA) that "contain specific measures to reduce water temperature through the use of Dworshak releases and implementation of flow objectives." Those RPAs, she continues, require federal agencies to adopt one and five year water quality plans.
However, she said the plaintiffs contended that the 2001 ROD does not comply with her February 2001 order and that the Corps should take steps beyond the 2000 BiOp to mitigate for water temperature exceedances at the four dams. She disagreed with this contention.
"Both the NMFS 2000 BiOp and the (Corps') 2001 ROD evaluate the requirements of the Clean Water Act; acknowledge the overlap between the requirements of the Endangered Species Act and the Clean Water Act; and commit to measures which are intended to comply with both statutes," she said.
Judge Frye goes on to say that the 2001 ROD also recognized that there are other measures to reduce water temperature that could be required by the CWA and could be addressed in a water quality plan, but they are "not essential for the survival and recovery of the listed species." Still, the record shows that the Corps adopted all the RPAs related to water quality outlined in the BiOp, she said.
"This court finds that the Corps considered all relevant factors and did not act arbitrary and capricious or contrary to law when it concluded that the measures set forth by the NMFS 2000 BiOp to reduce water temperatures are consistent with the Corps' obligations under the Clean Water Act."
For a copy of Judge Frye's decision: www.wildsalmon.org/library_files/Opinion583_SJ_3.pdf
Army Corps of Engineers, Portland District: www.nwp.usace.army.mil
National Wildlife Federation: www.nwf.org
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