Washington Board Issues Stay on Columbia Dredging Permitsby Dylan Rivera
The Oregonian, August 15, 2003
A Washington state appeals board issued a 14-day stay on state permits for the proposed deepening of the Columbia River to 43 feet, saying it may consider rescinding the permits.
In issuing the stay, the Pollution Control Hearings Board scheduled a hearing Wednesday to consider granting a longer stay while it considers whether the state Department of Ecology erred in granting two permits for the river deepening.
An environmental group, Columbia River Alliance for Nurturing the Environment, or Crane, asked for the stay after appealing the Department of Ecology's June finding that the project meets coastal-zone management and water-quality laws.
Lawyers representing clients for and against the project disagree about whether a stay longer than 14 days would threaten to delay federal approval of the proposal to deepen the river by 3 feet.
"Crane only cares about making sure that this project is done right," said Eric Merrifield, an attorney for the alliance.
The group said the Department of Ecology ignored its own science when it approved the permits earlier this year.
Among other things, Crane said the department has identified dredging and damming of the river as causes of coastal erosion in Washington state. A department scientist also said in an e-mail message quoted in the suit that the dredging project would likely continue coastal erosion, unless sand dredged from the river is used to enhance beaches.
After the hearing at an as-yet-unspecified time Wednesday at board offices in Lacey, Wash., it could take several months for the board to consider whether to rescind, amend or affirm the permits, attorneys on both sides said.
Six Oregon and Washington ports sponsoring the $133.6 million project, the U.S. Army Corps of Engineers and the Ecology Department all opposed the temporary stay.
"Ecology believes the orders were appropriately granted and there's no basis for staying their effectiveness," said Matthew Wells, an attorney representing the ports.
Dredging advocates question whether they need the permits they once said were important.
When environmental officials in Oregon and Washington approved the permits in June, port and corps officials hailed the approval as a "major milestone." The states' approvals included conditions that would increase the project's cost in order to protect habitat for endangered fish and address other concerns, but corps officials said they would try to comply with them.
Now, facing the Crane appeal, attorneys for the corps say the state permits aren't necessary for the agency to issue a "record of decision," a formal recommendation on the project to Congress and the Bush administration.
Corps officials hoped for a record of decision last spring but delayed it to obtain permits from Washington and Oregon. The corps had planned to issue the record of decision in August but now plans to issue it in September, corps spokesman Matt Rabe said.
In deference to the states, the corps wanted to have the permits before issuing the record of decision, Rabe said. But he said the corps' attorneys do not think the agency needs them to proceed.
On Thursday, Wells, the ports' attorney, argued that the record of decision is governed by the National Environmental Policy Act, which he said "doesn't require that you obtain all the state approvals."
"The mere fact of an appeal doesn't mean that those approvals weren't properly approved in the first place," he added.
Merrifield, the attorney for Crane, said the hearing board should grant a longer stay. He contends that it would be illegal for the corps to issue its record of decision while a stay is holding up the state permits.
Merrifield said he doesn't believe the corps' assertion that it can proceed without the permits.
"If that's true, then why are they fighting this tooth and nail?" he said. "Either the corps will be bound by this stay, in which case it's essential that the board issue it, or they won't be bound, in which case the stay won't harm them."
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