9th Circuit Upholds
by Nicholas K. Geranios
SPOKANE, Wash. -- A federal appeals court today upheld the federal government's operation of four hydroelectric dams on the Snake River, saying the U.S. Army Corps of Engineers keeps water temperatures as low as it can to protect endangered salmon.
The split decision of the 9th U.S. Circuit Court of Appeals sided with the Army Corps against environmental groups, and concluded the agency is complying with state water quality standards as required by the Clean Water Act.
It was a victory for forces that want to keep the dams over those calling for removal of the structures.
Kristen Boyles, a lawyer with Earthjustice in Seattle, said it was too early to say if the decision will be appealed.
"We are disappointed with the decision," she said, but added environmentalists agreed with many of the points made in "a strong dissent."
The issue of water temperatures will come up repeatedly in the future as efforts to save endangered salmon and steelhead runs continue, Boyles said.
"The question of hot temperatures caused by those dams is not going to go away," she said.
The Army Corps was pleased that the appeals court concluded it was doing all it can to keep water temperatures low, said Witt Anderson, chief of fish management for the agency in Portland, Ore.
"We're doing all the operational things we can do to address those concerns," Anderson said.
Actions taken by the corps to benefit salmon include releasing cold water from the depths of reservoirs behind Libby and Dworshak dams to cool the river in summer, storing more water behind dams for later release to benefit fish and lowering reservoirs during the spring migration so river currents are faster.
The corps operates the Columbia River Power System, which provides much of the electric power of the Pacific Northwest. Four of the dams - Ice Harbor, Lower Monumental, Little Goose and Lower Granite - are on the Snake River in Eastern Washington.
Those dams are blamed by environmental groups for destroying wild salmon runs in the region, and a bitterly fought campaign has been under way for years to remove them.
Federal law requires the dams to comply with Washington state water quality standards, and the state of Washington has set a water temperature standard of 20 degrees Celsius that must not be exceeded by human activities. Warmer temperatures harm the fish.
The state since 1994 has argued that the dams have violated its temperature standards.
In 2001, the Army Corps issued a decision saying it did not believe its operation of the dams was causing water temperatures to rise, and that it did not think any structural modifications of the dams would reduce water temperatures.
The National Wildlife Federation sued, contending the Army Corps' decisions were capricious and contrary to the Clean Water Act. The federation was eventually joined by the Nez Perce Indian tribe and a coalition of environmental groups including the Sierra Club, Idaho Rivers United and others.
A federal judge in Portland, Ore., concluded that Army Corps operations did not violate the Clean Water Act, and granted summary judgment to the corps in 2001. That was appealed to the 9th Circuit.
In her dissent, Judge M. Margaret McKeown objected that the choice before the judges seemed to come down to either complying with the Clean Water Act or tearing down the dams.
She said it should be possible to comply with the act and keep the dams, with modifications, and that the case should be remanded to the district court.
The Army Corps did not really study modifications or changes in operation of the dams, she said.
"The studies generally presuppose that the only options are either having a dam or not having a dam," McKeown wrote.
Twelve runs of salmon and steelhead listed as threatened or endangered species pass through the four lower Snake River dams, which produce hydroelectric power, allow barges to haul goods from Lewiston, Idaho, to Portland, and provide water for farms and cities.
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