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Conservation Groups File Brief in Lower Snake Dredging Case

by Barry Espenson
Columbia Basin Bulletin - October 8, 2004

"Species already facing the specter of extinction can ill-afford another cumulative insult," according to conservation groups asking that a U.S. District Court stop planned dredging this winter of the shipping channel in the lower Snake River.

A brief filed Oct. 1 with the court says that harm, no matter how large or small, to protected salmon and steelhead resulting from the dredging will be irreparable and push stocks incrementally closer to extinction. And the law that protects those fish, the Endangered Species Act, requires such harm be avoided, according to the most recent volley in the legal fight over that dredging plan.

The judge presiding in the lawsuit, Seattle's Robert Lasnik, will hear oral arguments Oct. 19 for and against the groups' injunction request and, presumably, make a decision shortly thereafter. The U.S. Corps of Engineers plans to restore the channel's 14-foot depth during a Dec. 15 to March 1 work window.

The preliminary injunction request is the second sought of Lasnik by the groups. Two years ago the National Wildlife Federation, Washington Wildlife Federation, Idaho Wildlife Federation, Idaho Rivers United, Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources won a court injunction that forestalled dredging plans that year.

The 2002-2003 dredging plan was characterized as the first-year implementation of the Corps' newly developed 20-year Dredged Material Management Plan and environmental impact statement. After Lasnik's decision, the Corps withdrew the documents and started work on updated versions to address the court's concerns. A NOAA Fisheries biological opinion that judged the dredging would not jeopardize the survival of Snake sockeye, fall and spring/summer chinook and steelhead was also withdrawn.

The Corps during 2003 developed a "supplemental environmental analysis" for a 2003-2004 dredging plan but implementation stalled and the strategy was eventually adopted by the Corps this past June. NOAA also issued a "no jeopardy" BiOp to give this winter's planned activity ESA clearance.

The Corps hopes to remove about 332,200 cubic yards of sediment from the congressionally authorized navigation channel at the confluence of the Snake and Clearwater rivers, the ports of Lewiston, Idaho, and Clarkston, Wash., and the navigation lock approaches at Lower Granite and Lower Monumental dams. Those dredge materials will be used "beneficially," according to the plan, to create a shallow habitat area for salmon and steelhead in the Snake River's Knoxway Canyon.

The new injunction request attempts to block dredging this year as all await completion of the new long-term dredging plan and impact statement. Lasnik's December 2002 order pointed out legal, scientific and environmental flaws in the strategy. He also faulted the BiOp and said NOAA failed to ensure that dredging would not destroy ESA-required critical habitat for fall chinook salmon. The 2004-2005 dredge plan is virtually identical, say the conservation and fishing groups.

Federal attorneys have said the latest plan is a one-year fix and separate from the process of developing a long-term strategy. They say it will have minimum impacts on listed fish stocks and help avert economic and safety problems would likely occur if sediment is not removed from the channel. The channel has not been dredged since the winter of 1998-99.

Attorneys representing the Corps and NOAA Fisheries asserted in a Sept. 17 opposition to the injunction that National Environmental Policy Act documentation -- an EIS -- is not necessary for the one-year activity.

The conservation and fishing groups say the supplemental environmental analysis does not meet NEPA standards and that any dredging activity must await completion of an EIS that carefully weighs non-dredging alternatives for sediment management.

The Oct. 1 brief says the federal attorneys "bob and weave across the legal landscape without settling on a coherent explanation for why this Court should come to any different conclusion than it did when presented with the same dredging plan in 2002.

"Moreover, the Corps and defendant intervenors Lower Granite Navigation Coalition ('LGNC') are forced to concede that the 'crippling effects' they predicted in 2002 have never come to pass, and that an injunction would have only minor consequences for barge transportation. At the same time, conditions for salmon and the river have deteriorated: dredging poses a risk of irreparable harm to species already in a 'deficit situation' of drought, low survival, and inadequate ESA implementation," according to the plaintiffs brief.

The brief notes the decision made this summer by Portland-based District Court James A. Redden said that Snake River fall chinook salmon juvenile survival gains "have not materialized" by NOAA and federal hydrosystem managers. Redden prevented implementation of a federal spill reduction plan, saying spill remains a valuable tool given the "deficit situation." The federal agencies had said the proposed spill reduction would have minimal impacts on listed fish, and that impacts would be mitigated by actions that were to be taken elsewhere to improve overall survivals.

"Injuries to listed species cannot be remedied later," according to the Oct. 1 brief. "Given the very minimal harm to defendants, or anyone else, that will result from delaying this proposal until the Corps can comply with the law, the balance of equities clearly favors maintenance of the status quo."

Barry Espenson
Conservation Groups File Brief in Lower Snake Dredging Case
Columbia Basin Bulletin, October 8, 2004

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