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New Lawsuit Seeks to Halt Columbia Channel Deepening by CBB Staff Columbia Basin Bulletin - April 2, 2004

A lawsuit submitted this week in federal District Court in Seattle is aimed at stopping the U.S. Army Corps of Engineers and lower river ports from proceeding on their $150 million plan to deepen by three feet the lower 103 miles of the Columbia River shipping channel.

Oregon and Washington ports have said that deepening the channel from Portland to Astoria is needed to stay competitive with other West Coast ports.

However, Northwest Environmental Advocates sees the project as further degrading the Columbia River estuary. It challenged this week NOAA Fisheries biological opinions for both the channel deepening project (released in 2002) and for Corps operation and maintenance dredging operations in the lower river (released in 1999), the mouth of the Columbia River and the lower Willamette River.

"We've been pretty clear considering the impacts on salmon habitat that the project (channel deepening project) should not go forward," said Nina Bell of the NWEA. She said that over the years with the huge changes in instream flow, estuary habitat and in hydroelectric operations that "the estuary shouldn't be degraded further."

If approved by Seattle Judge John Coughenour, NOAA could be required to withdraw its two BiOps and the Corps could be required to shut down dredging operations in the river until new BiOps are issued, Bell said.

NOAA spokesman Brian Gorman said the agency hadn't had time to evaluate the complaint and so he couldn't comment. But he did say that the inclusion in the complaint of the O&M dredging BiOp was a surprise.

"To my knowledge, this hasn't been controversial until now," Gorman said. "Certainly, the deepening has been controversial, but not the maintenance dredging."

It was expected and there is nothing new in the lawsuit, said Dave Hunt, executive director of the Columbia River Channel Coalition, a group comprised of lower Columbia River ports, business, labor and agricultural interests. "All of the arguments have been rejected in public processes one by one," he said.

"We remain very confident that the project is economically, environmentally and legally sound, and we expect the courts to find that to be true," he said.

Like Gorman, he said he had not expected the lawsuit would have included the O&M dredging BiOp, but that its inclusion shows that their true goal is opposition to the commercial navigation system.

Bell expects from the lawsuit some "meaningful" analysis of the combined impacts of human activity on the estuary, which she says was not been done in either of the BiOps. Those impacts include past dredging projects, diking and filling, sewage and industrial discharges, among other actions in the estuary.

"It's impossible to evaluate the impact of human activity on salmon and their habitat without the analysis of concerns about what already has been done to the estuary," Bell said.

Those actions, NWEA said, "have destroyed salmon habitat and have resulted in erosion of coastal beaches and deterioration of the narrow inlets that provide important habitat for salmon." The complaint says that the channel deepening project would further degrade and destroy threatened and endangered salmon habitat.

"NOAA Fisheries disregarded its own scientific findings when it approved this project," said Todd True of Earthjustice. "All the science shows that dredging and dams on the Columbia have taken an enormous toll on salmon and it's outright illegal to approve more."

Earthjustice filed the lawsuit on behalf of NWEA Tuesday. This is NWEA's second run at the Columbia River channel deepening project. It also sued NOAA Fisheries in 2000 to stop the project. That lawsuit, although not finalized in court, was a factor in the federal fishery agency's decision to withdraw its BiOp for the initial project. That withdrawal threw the process into 18 months of further scientific study, after which the U.S. Army Corps of Engineers submitted a new project proposal in 2002.

NWEA said that in its approval of the channel deepening project NOAA had failed to study the causes of the estuary's decline and what it could do to restore the area. Bell said the channel deepening BiOp failed to accurately describe and consider the debased biological baseline -- the current condition of the estuary -- which should have been assessed in the O&M dredging plan, but was not.

For example, conclusions NOAA arrived at about changes to salinity in the estuary due to deepening the navigation channel implies that the previous BiOp -- the maintenance dredging BiOp -- had already set a baseline, but that information isn't there, Bell said.

She said the O&M BiOp spent more effort describing the issues of Caspian terns and cormorants preying on juvenile salmon in the estuary -- "the emerging issue at the time" -- than it did with the estuary's condition. "But the totality of those human actions have simply not been addressed," Bell said.

"NOAA Fisheries' approval of maintenance dredging doesn't even pretend to address the effects of the existing channel on salmon," said Bell. "This is flimsy science and doesn't begin to meet legal requirements."

Bell said dredging could continue even after the BiOps are withdrawn, if that is what the judge decides, but only if the Corps is willing to risk being charged with take of one of the 12 species of salmon and steelhead present in the estuary that are listed under the federal Endangered Species Act.

The court proceedings are in their formative stages. The next action would be a response from NOAA. Gorman didn't expect a hearing date for several months or a decision for six months to one year.

Hunt said that the ports and the Corps are in the final stages of a agreeing to a cooperative agreement, which would inject state money into the project. The states of Oregon and Washington are paying about 35 percent of the channel deepening project costs. An Office of Management and Budget review is under way. In addition, regardless of what happens with the lawsuit, he said, the Corps already has enough money to begin this summer the ecosystem restoration work that is part of the project.

Related Sites:
Northwest Environmental Advocates: www.northwestenvironmentaladvocates.org
Earthjustice/Seattle: www.earthjustice.org/regional/seattle/index.html?ID=&show=Press%20Releases
NOAA Fisheries Northwest Regional Office: www.nwr.noaa.gov