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Commentaries and editorials

Corps: Plaintiffs Fail to Prove Case
in Clean Water Suit

by Mike O'Bryant
Columbia Basin Bulletin - September 29, 2000

Conceding that Washington state water quality standards have been exceeded in the Snake River, the U.S. Army Corps of Engineers says plaintiffs in a pending lawsuit have failed to prove that those violations were caused by the way the Corps operates the four Lower Snake River dams.

The Corps filed this month its most recent document in the middle of the second round of briefings filed in U.S. District Court. A March decision by Judge Helen Frye ruled that the Corps must comply with the Clean Water Act when operating the four dams, but she put off her decision whether the Corps had actually violated the CWA until administrative records could be reviewed.

The Corps and plaintiffs were given 90 days to build that administrative record, but the Corps is also proposing that the court put off its decision even longer until the National Marine Fisheries Service wraps up its 2000 biological opinion of the Columbia River federal hydro system, something the Corps says may satisfy the plaintiffs' concerns.

So far both sides to the lawsuit have supplied plenty of information that lays out the administrative record on whether the CWA has been violated, but the Corps says that is not enough to make the next logical step that would prove actions by the Corps caused the violations. The Corps brief says the plaintiffs failed to meet the burden of proof.

"The mere proof that there are exceedances of standards in the Snake River, or that the Corps knew there were water quality standards in effect, without a causal connection to the Corps' decisions simply does not meet that burden," the Corps' brief says. The brief was prepared by the U.S. Justice Department under the guidance of Fred Disheroon.

Todd True of the Earthjustice Legal Defense Fund in Seattle is handling the case for the plaintiffs (replacing Kristen Boyles, who is on leave until January). He will not file the plaintiff's briefing in response to the Corps' until October, so he would not comment on the Corps' brief other than to say that he disagrees with bulk of the its argument.

"The court established that the Corps has to comply with water quality standards," True said. "Our brief very clearly shows that they are not complying with water quality standards. There is simply a difference of opinion."

Plaintiffs in the lawsuit are the National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resource, American Rivers, Sierra Club, and Idaho Rivers United. The plaintiffs are represented by Earthjustice and the Pacific Environmental Advocacy Center at the Northwestern School of Law of Lewis and Clark College in Portland.

They charged the Corps with operating the four lower Snake River dams and reservoirs in violation of Clean Water Act standards for temperature and dissolved gas, both set by the Washington Department of Ecology. The standards are 20 degrees Celsius (68 degrees Fahrenheit) for temperature and 110 percent total dissolved gas, although the state grants the National Marine Fisheries Service a temporary waiver when spilling water over the dams to aid in juvenile fish passage.

Plaintiffs asked the court to direct the Corps to comply with water quality standards, which it did, but also to declare the Corps in violation of the CWA, which the court is considering in this second round.

The Corps says the plaintiffs rely in their argument on a statement by a Corps official who said the Corps was not legally required to comply with state water quality standards, but that it still tried to comply as a matter of policy.

"Plaintiffs argue that this and similar statements prove that the Corps has ignored water quality standards and is deliberately operating its projects in disregard of such standards," the brief says. "This is simply wrong!"

It goes on to say that the Corps made extensive efforts to meet water quality standards, but that is not the issue.

"The issue in this case is not whether the standards are to be taken into account by the Corps in making decisions on operations of its dams, which they clearly are, but whether the Corps has taken those standards into account and more importantly, whether there is any evidence that the Corps has made decisions that have directly resulted in exceedances of those standards," the brief says.

The brief also states that the plaintiffs have made assertions the Corps has made decisions that have led to water quality exceedances, but that they have failed "to explain what the Corps should have done differently...or what difference a different decision would have made...."

The brief characterized the plaintiffs' case this way: If the Corps knew there were water quality standards and knew there were violations, then they are entitled to relief in court.

"Under that theory, all they need to show is that the Corps has not been able through its operations of its dams to correct all water quality problems in the Snake River," the brief says. But, that's not what they need to prove, it says. "In this case Plaintiffs must establish that the Corps has made decisions relating to actions of the Corps over which it has not control or the ability to prevent such exceedances ."

As it has said before during this proceeding, the Corps stated again that much of the water quality problems in the lower Snake River occur regardless of the way the Corps operates the dams. For example, water temperature is affected by upstream contributions and, to a lesser degree, " the existence of dams also affects water temperature," the brief states. And, TDG is influenced by the existence of dams and by natural flows.

As for temperature violations, the Corps says what the plaintiffs' argument relies on "relates not to Corps operations, but to the fact that the dams are there."

In previous briefs in this case before Judge Frye, plaintiffs had said, in developing its records of decisions on river operations to comply with NMFS' 1995 and 1998 BiOps, the Corps focused on the Endangered Species Act while ignoring the Clean Water Act.

The Corps says the reason is because it was heavily engaged in making a plan that would meet the requirements of the ESA, but that it was also required to act consistently with all other laws, including the CWA. "(B)ut those other laws, including the CWA, were not the focus of the ongoing litigation over dam operations," the brief says.

Finally, in the interest of "judicial economy," the Corps asked the court to stay the case until NMFS 2000 BiOp is finalized. That opinion, the brief says, will also include a Water Quality Appendix that it says will address water quality from a larger perspective. If the BiOp is adopted by the river operating agencies , including the Corps, the Bonneville Power Administration and the Bureau of Reclamation, the "concerns Plaintiffs express likely will be addressed," the brief says. If the concerns are not addressed, then the case could pick up where it left off.

"Included in that draft opinion are several measures and procedures to address the issue of high total dissolved gas...and water temperature on the survival of the listed anadromous fish in the Snake and Columbia rivers as they relate to the operation of federal hydro dams," the brief says.

It says that plaintiffs have the opportunity to comment on the draft BiOp, including those issues that have to do with the CWA, and to participate in the process "leading to the new decision documents for the FCRPS." That would include the Corps' next ROD.

True, however, rejected this idea. "The court needs to go ahead and rule because the government is not in compliance with water quality standards now," he said.

True said that the plaintiffs' brief is due Oct. 13, but that the court had not yet set a date for hearing oral arguments.

Link information:
Army Corps of Engineers, Portland District: www.nwp.usace.army.mil


by Mike O'Bryant
Corps: Plaintiffs Fail to Prove Case in Clean Water Suit
Columbia Basin Bulletin, September 29, 2000

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