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Ninth Circuit Upholds Corps in Lower Snake Clean Water Case by Bill Crampton Columbia Basin Bulletin - October 8, 2003

The Ninth Circuit Court of Appeals this week ruled that the Army Corps of Engineers was not "arbitrary and capricious" when concluding that the "operations" of the four Lower Snake River dams do not contribute to water temperature violations under the Clean Water Act and Washington State water quality laws.

In a 2-1 decision the majority called a "difficult case," the court agreed with the Corps that a distinction must be made between the "existence" of the dams and the "operations" of the dams.

The full opinion can be found at: www.ca9.uscourts.gov/ca9/newopinions.nsf/53EE1C88927D5D9D88256F23005032D0/$file/0335235.pdf?openelement

"Because the Corps' conclusions in the 2001 ROD were supported by the administrative record, we conclude that the Corps' conclusion that its operations of the dams on the lower Snake River, as opposed to the existence of the dams themselves, did not contribute to temperature exceedences was not arbitrary and capricious," said the appeals court.

Dissenting Judge M. Margaret McKeown strongly disagreed with the conclusions of majority Judges Melvin Brunetti and Ronald Gould.

McKeown contends the majority improperly framed the case as a choice between compliance with the Clean Water Act and tearing down the dams. She said the "actual legal issue" is whether the evidence supports the Corps' decision that existence of the dams is the "sole cause of temperature exceedences," and that, therefore, "the Corps bears no obligation to comply with the CWA."

McKeown said more effort is needed to confirm if further operational changes could improve water quality and move the Corps closer to compliance with the CWA. "Missing in the record is any evidence that the Corps' operation of the dams is not one of the causes of temperature exceedences -- which is the decision we are reviewing."

"Without any assurance that the Corps considered the universe of operational alternatives appropriate for CWA compliance, there is no rational basis for the Corps' conclusion that efforts to reduce water temperatures would be futile," McKeown wrote. "Without record evidence linking the CWA standards to the Corps' conclusions, notably the lack of evidence regarding the CWA and the impact of dam operations or the viability of dam operations alternatives, I conclude that the Corps' decisions cannot pass APA scrutiny."

Kristen Boyles, an Earthjustice attorney representing conservation groups that filed lawsuit against the Corps, said the plaintiffs had not yet decided whether to request a rehearing before the appeals court.

Boyles noted the aggressive dissent, saying it "takes a look at the missing step," which she said is the yet to be gathered evidence showing that no further changes in dam operations would improve water quality.

David Cummings, an attorney for the Nez Perce Tribe, one of the plaintiffs, said, "The majority opinion is hard to square with the Clean Water Act's language. If the Corps' dams can't meet the temperature standard, the Clean Water Act says the agency can't throw up its hands, but that it must seek congressional appropriations to fix the problem, and only then may the Corps seek a limited one-year waiver from the president."

Witt Anderson of the Corps said "we're pleased they (the court) affirmed what we have said in the administrative record that is not the operations that is causing temperature exceedences."

"We are doing what we can do, such as cold water releases from Dworshak," Anderson said.

He said the Corps has looked at other suggested operational measures very hard, but none will offer benefits because of the water impoundments.

The lawsuit against the Corps was first filed in 1999 by conservation groups who have argued over the years in lower courts that the Corps' "Record of Decisions" regarding the operations of the Lower Snake dams were arbitrary and capricious, and a violation of the Administrative Procedure Act.

The plaintiffs say the RODs did not properly address the Corps' obligation to comply with state water quality requirements for temperature, as required by the CWA.

A lower court in February, 2001 ruled that the Corps had not addressed water temperature and CWA standards adequately in 1995 and 1998 RODs, and remanded the issue to the Corps for further consideration.

In May 2001, the Corps issued a 2001 ROD for the dams in which the agency acknowledged that the "existence" of the dams "may contribute to a shift in the temperature regime of the Snake River."

The Corps said it would take steps aimed at improving compliance with state water quality standards outlined in the National Marine Fisheries Service's 2000 Biological Opinion for the Federal Columbia River Hydropower System. Such efforts included water withdrawal regimes from specific depths at Libby and Dworshak dams to cool river reservoirs.

The Corps in the ROD said that other than the steps outlined in the BiOp, it "did not have reliable information . . . that any structural modification of lower Snake River dams would reduce water temperature in the reservoirs or have a significant effect on temperature water quality standard exceedences."

The Corps concluded that the "operation" of the Corps dams is not causing temperature violations and "there are no operational changes that we can undertake to significantly decrease river water temperatures."

The conservation groups challenged the ROD again, saying it failed to adequately address exceedences of state water temperature standards. Oregon U.S. District Court Judge Helen Frye, in January 2003 ruled the ROD was not arbitrary and capricious and did not violate the APA.

The judge noted the Corps had implemented the actions in the 2000 BiOp and that there was "no evidence in the record" to suggest that such measures were "not consistent" with the Corps' obligations under the Clean Water Act to mitigate temperature exceedences."

The conservation groups and the Nez Perce Tribe appealed to the Ninth Circuit.

The plaintiffs argued that the Corps could have taken additional steps over the years to decrease water temperature on the lower Snake River.

For example, they argue that the Corps, under the 1995 Environmental Impact Statement for the Lower Snake dams, could have adopted the "natural river operation" of deep drawdown of reservoirs to reduce temperature exceedences. Failure to adopt these operations in the 2001 ROD, say the plaintiffs, rendered it arbitrary and capricious.

The Ninth Circuit disagreed "for several reasons," including:

• The `1995 EIS itself did not recommend full adoption of the "natural river operation" method, citing concerns about sediment pollution that would adversely impact resident fish habitat, spawning, and food supply.

• The 1995 EIS said the natural river operation was not a "cure-all" to water quality issues and there were substantial questions whether such option was "feasible, given potential problems of compliance with other statutes."

• The natural river operation involved "significant structural and operational changes to the dams, the viability of which was unclear in light of the Congressional purpose of constructing the dams in part for power generation."

The plaintiffs contend that EPA modeling conclusively established the Corps' "operations" of the dams result in temperature exceedences. The Corps says the models support the ROD's conclusion that the "existence" of the dams causes temperature exceedences, not dam operations.

"We are not persuaded that the EPA model establishes that the Corps' operation of the dams cause temperature exceedences in the lower Snake River," said the Ninth Court justices in the majority opinion. "The conclusions of the EPA model were all premised on a comparison between water temperatures with the dams in place and with the dams removed, and not based on a comparison of various operational methods of the dams."

The court said it did not agree with plaintiffs' "contention that the EPA study establishes that it is the Corps' operations of the dams that is causing temperature exceedences on the lower Snake River. To the contrary, the EPA study supports the Corps' contention that it is the existence of the dams that is causing temperature exceedences."

The plaintiffs also argued that even if it is the existence of the dams that contributes to water quality violations, the Corps is in violation of the Clean Water Act.

The appeals court, again, disagreed. " Our review of the Corps' conclusions in the 2001 ROD does not extend to Congress' decision to create these dams almost sixty years ago, which of course was not within the discretion of the Corps. We cannot determine that the Corps was arbitrary and capricious, or acted contrary to law, in not taking action that would nullify the purpose of the federal dams, including forgoing water impoundment and power generation, in practical effect similar to removing the dams, where the Corps had no power to take such an action."

"This is a difficult case," said the court, "because it appears that the very existence of the dams, and consequent water impoundment, may cause some temperature exceedences beyond those that occur naturally. And we have found no precedent squarely on point in the federal circuits addressing the issue of compliance with state regulatory law, incorporated generally by the CWA, when its specific application would frustrate the congressional purposes in authorizing the dams."

Plaintiffs in the case are: National Wildlife Federation; Sierra Club; Idaho Rivers United, Inc.; American Rivers; Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; Washington Wildlife Federation; and Idaho Wildlife Federation. The Nez Perce Tribes is a plaintiff-intevenor-appellant

With the Corps as defendant, the defendants-intervenors-appellees are: Inland Ports and Navigation Group, Port of Lewiston, Port of Whitman County, Port of Morrow, Shaver Transportation, Columbia River Alliance, Northwest Pulp and Paper Association, and Northwest Irrigation Utilities, Inc.