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More Parties Added to Clean Water Suit Mike O'Bryant Columbia Basin Bulletin, September 17, 1999

Motions to intervene by four parties were granted in a lawsuit charging the U.S. Army Corps of Engineers with violating the Clean Water Act in its operations of four lower Snake River dams.

Federal Court Judge Helen Frye ruled that Potlatch Corp., Inland Ports and Navigation Group, Columbia River Alliance and the Nez Perce Tribe could intervene in the lawsuit brought against the Corps by fishing and conservation groups March 31, 1999.

At the same time, Judge Frye denied a U.S. Justice Department's petition to move the case to Federal Court Judge Malcom Marsh, finding the issues in this case are different than actions previously decided by Judge Marsh. The Justice Department represents the Corps.

"The Corps contends that this case should be decided by Judge Marsh because he has presided over litigation involving Pacific Northwest salmon since 1986 and has a wealth of knowledge in salmon-related issues," Judge Frye said in her decision. She also noted that the plaintiffs did not object to transferring the case to Judge Marsh. They said "the issues presented in this case have not been decided in any other case and need not be decided by Judge Marsh."

Judge Frye concluded by "finding the issues in this case do not directly involve any action previously decided by Judge Marsh."

Plaintiffs are the National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resource, American Rivers, Sierra Club, and Idaho Rivers United. The plaintiffs are represented by Earthjustice Legal Defense Fund in Seattle and the Pacific Environmental Advocacy Center at the Northwestern School of Law of Lewis and Clark College in Portland.

The groups charged the Corps with operating the four lower Snake River dams and reservoirs in violation of the Clean Water Act, creating river conditions that "pushed imperiled salmon and steelhead species to the brink of extinction," according to plaintiff claims. Specifically, the lawsuit claims the Corps is operating the dams in such a way that it violates Washington state's water quality standards for temperature and dissolved gas, in addition to the state's anti-degradation standard. The state set standards in response to federal Clean Water Act requirements. The dams include Ice Harbor, Lower Monumental, Little Goose and Lower Granite dams.

The lawsuit asks the court to declare that the Corps is violating the Clean Water Act. Further, it seeks an injunction to direct the Corps to comply with water quality standards of the state of Washington and to set a schedule to resolve temperature and dissolved gas problems.

Though dam removal is not sought in the lawsuit, plaintiffs in their complaint allege that removing the earthen portions of the dams to restore a free-flowing river may be the best and least expensive way to restore cool water for salmon and eliminate dissolved gas.

In granting intervenor status to Potlatch Corp., Judge Frye said that Potlatch, "joined by the Northwest Pulp and Paper Association, contends that if the Lower Granite Dam is breached and the configuration of the Snake River is substantially altered, the ability of Potlatch Corporation and other holders of NPDES permits to meet water quality standards is likely to be jeopardized." NPDES is the National Pollutant Discharge Elimination System.

In a separate action, the Lands Council, Idaho Conservation League and Idaho Rivers United joined in a lawsuit against the EPA in U.S. District Court in Seattle, Aug. 9, 1999, to force changes to Potlatch's Clean Water Act permit. The groups specifically want EPA to consult with the National Marine Fisheries Service and U.S. Fish and Wildlife about the effects of Potlatch's warm water discharges on endangered salmon, steelhead and bull trout.

Potlatch currently releases about 40 million gallons of 92-degree water daily from its mill in Lewiston, Idaho. Potlatch said that amounts to 62 cubic feet per second of warm water into a the confluence of the Clearwater River and the Snake River at the head of the Lower Granite Dam pool, where the flow is about 20,000 cubic feet per second.

Discharges from the mill are regulated by the EPA through a Clean Water Act permit, but that permit expired in 1997. It was extended indefinitely by the EPA pending review of Potlatch's new permit application.

In giving the Columbia River Alliance the right to intervene, Judge Frye said CRA contends the plaintiffs seek to draw down and remove the lower Snake River dams, "which threaten direct injury to its members who depend upon navigation and irrigation for their livelihood."

CRA believes that both the Corps and the plaintiffs share the same "blame the dam" blinders, something CRA said in a previous court brief will result in "salmon recovery measures that cannot succeed in recovering salmon, and can only succeed in imposing ever-increasing restrictions on dam operations, injuring CRA, its members, and even the salmon." CRA represents agricultural, community, forest products, labor, industry and public utilities interests in the region.

The Inland Ports and Navigation Group, a consortium of river users, including ports and barge companies, asked to intervene because neither the plaintiffs nor the Corps represent their interests, they said.

CRA, Potlatch and Inland Ports and Navigation Group, all said they have standing because they are or represent those who benefit from the Columbia River waterway and that this suit could affect their businesses. All say they have made substantial investments in the waterway created by the system of Columbia River and lower Snake River dams and that they've used public funds to do it.

Plaintiffs, however, claimed these intervenors "are not entitled to intervene as a matter of right because they do not have a legally protectable interest relating to the subject matter of this section" and that they are "not regulated under the provisions of the Clean Water Act at issue in this litigation," Judge Frye said in her order.

"We had hoped to keep this simple and focused," said attorney Kristen Boyles of the Earthjustice Legal Defense Fund. "My reason for any opposition is that this is a simple case: is the Corps in compliance with the state of Washington's clean water standards and the Clean Water Act?"

She said the three intervenor groups will bring up other issues, such as economic and ocean condition issues, but that plaintiffs will deal with that. "I hope we get at the real issues," she commented.

Judge Frye concluded that the relief sought by the plaintiffs could have a direct effect on Potlatch's ability to "discharge permissible quantities of pollutants," and so granted their motion to intervene.

She said Inland Ports and Navigation Group benefits from the "inland waterway system created by a wide range of congressional acts," and relief in this case could affect that system.

Finally, she said "because relief in this case could significantly impact the interests of...Columbia River Alliance arising from a number of federal statutes, the court will grant the motion to intervene by Columbia River Alliance."

The Nez Perce motion to intervene was not opposed by either party to the lawsuit, so was granted without discussion.

"In a nutshell, the tribe's interest in this case is to ensure the United States complies with the Clean Water Act," said David Cummings, Nez Perce Tribal attorney.

"The tribe has been extremely concerned by the water quality problems in the lower Snake River reservoirs, as these conditions directly harm the salmon and, in so doing, directly harm our culture, our way of life, and our spiritual beliefs that are so deeply intertwined with the salmon," said Samuel J. Penney, chairman of the Nez Perce Tribe.

In granting the motions to intervene, Judge Frye said the intervenors "have significant economic and non-economic interests in the operation of the dams on the Lower Snake River, and these interests may...be impaired or impeded by relief sought by plaintiff...."

Boyles said the plaintiffs filed a summary judgment and the intervenors have to file opposition briefs by Sept. 27. She anticipates the intervenors will now try to change that date.