Washington Appeals Court Says
by Bill Rudolph
Washington appellate judges have upheld a decision by the state's Department of Ecology denying a petition by sport and commercial fishing groups to open rulemaking that would relax the current 115-percent total dissolved gas (TDG) limit in forebays at federal dams on the Columbia River.
"We reiterate that on appellate review," said the Nov. 27 opinion, "we must give Ecology 'wide discretion' in determining whether its denial of a rulemaking petition was made through a process of reason ... Ecology reached its decision after considering hundreds of studies in its own literature review, the results of two other literature reviews, and input from other parties. Northwest Sportfishing has not shown that Ecology failed to use a reasoned process in concluding that modifying the 115-percent TDG forebay standard posed significant likely harm to aquatic life unable to depth compensate ... Accordingly, we hold that Ecology did not act arbitrarily and capriciously in denying Northwest Sportfishing's petition."
A Thurston County Superior Court judge ruled in June 2011 that environmental and fishing groups failed to convince her that the state's Department of Ecology was "arbitrary and capricious" because it refused to amend current TDG limits at dams. Earthjustice had filed a rulemaking petition with the state three times since 2007 before it tried in the court.
The state's current rule limits TDG at 115 percent in dam forebays and 120 percent in tailraces. The Clean Water Act limits TDG at 110 percent and special waivers are required to operate Columbia and Snake River dams beyond these limits as called for in the current hydro BiOp. The groups petitioned the state to increase its forebay limit to 120 percent, which would have increased spill at dams.
In early 2009, after more than a year of meetings, a group of water quality managers from Washington announced that the state would not change its 115-percent total dissolved gas water-quality criterion for dam forebays in the Columbia and Snake rivers--the level the BiOp called for to manage spill during the fish passage season. It was part of the process that had to occur when the Corps applied for a new five-year waiver of Clean Water Act standards to allow the BiOp-level spill at dams.
Using analyses from the Fish Passage Center, Oregon fish managers had already called for removing forebay gas monitors at mainstem dams in hopes of wringing a little more spill for fish at the dams. It was an approach other plaintiffs endorsed in the litigation over the 2008 BiOp. But in the final analysis, most participants said any potential fish benefits were lost in the "decimal dust" of the methodologies.
Ecology decided changing the standard wasn't worth it. According to a bi-state report in early 2009, "Ecology determined that there would be a potential for a small benefit to salmon related to fish spill if the 115-percent forebay criterion was eliminated, but there would also be the potential for a small increase in harm from increased gas bubble trauma."
Ecology pointed out what it would take to make a change, which included a cost-benefit analysis, a small business economic impact statement and a possible environmental impact statement.
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