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Lawsuit Over Dredging Plan Dredges Up Old Arguments by Bill Rudolph NW Fishletter, January 17, 2003

A Seattle judge dredged up some old Snake River issues last month when he ruled that a Corps of Engineers' plan to improve the river's navigation channel was inadequate, partly because the federal agency did not spend enough time investigating the possibility of using of a ten- to twenty-foot reservoir drawdown instead of relying on standard channel clearing methods that could harm critical fish habitat.

Federal judge Robert Lasnik of Seattle District Court granted a motion Dec. 13, 2002 for preliminary injunction by the National Wildlife Federation against NMFS and the Corps that will likely keep the federal agencies from implementing their plan, at least until deficiencies in the joint Corps/EPA EIS are addressed.

Environmental groups went to court in November seeking the injunction to stop this winter's proposed dredging. The groups said the four alternatives in the Corps' EIS were essentially the same, with the main difference simply changing locations for dredge spoils. The groups, which included the Washington Wildlife Federation, Idaho Rivers United, Idaho Wildlife Federation, Pacific Coast Federation of Fishermen's Associations, and the Institute for Fisheries Resources, said the agency failed to look at alternatives to dredging such as using drawdown and high flows along with improving streamside habitat to reduce erosion.

"Given the significant environmental and economic concerns surrounding this project, we are asking the Corps to hold off on this winter's dredging plan until more research is available," said NWF attorney Jan Hasselman. "It simply doesn't make sense to dredge until these questions are resolved."

The judge agreed, though he gave the Corps' economic analysis the benefit of the doubt. Plaintiffs had cited a declaration by Idaho economist Anthony Jones, who said the agency's cost-benefit analysis was too optimistic. The Corps says that over $43 million is saved annually by using barges instead of trucks and rail to ship commodities downstream. Jones pegged the annual benefit at $31 million a year. He said that the easiest way to deal with continuing sedimentation is to light load barges. "As sedimentation gradually continues," Jones said, "increasingly light barges would be required to navigate the channel. Moreover, the Corps can control the operating levels of the dams to raise pool levels, permitting barge navigation even as sediment accumulates."

That's exactly what the Corps is doing now, said Dixon Shaver, vice president of the Shaver Transportation Co. To keep the channel deep enough for navigation, he said Lower Granite reservoir is held above minimum operating levels around the confluence of the Clearwater and Snake rivers where grain barges load at nearby inland ports.

As for light loading in the future, Shaver said that's not a viable option. "We operate on a very small profit margin," Shaver said. "It's all in the last couple of inches." He said barges must be full to take maximum advantage of the 14-foot draft at project locks. That's the same depth the Corps has been mandated by Congress to keep in the navigation channel in the lower Snake.

NMFS Taken To Task
"This is the third year the Corps' dredging has been stymied," said Shaver, noting that originally, it was NMFS who had concerns over the agency EIS, namely over potential affects on ESA-listed stocks of the channel clearing effort. But the federal fish agency has now approved the Corps' plan. But the NMFS biological opinion associated with the EIS was another sticking point for the court.

Judge Lasnik agreed with plaintiffs, who said the NMFS dredging BiOp was "arbitrary and capricious." Since the federal agency failed to explain how dredging in areas of critical habitat for fall chinook would adversely modify that habitat, Lasnik said plaintiffs were likely to succeed on their merits because the BiOp failed to ensure that the action would not result in the "destruction or adverse modification" of the fish's critical habitat.

The judge also took NMFS to task for not specifying numerical "take" of the listed species. Otherwise, the judge argued, how could the agency establish whether the proposed action would harm enough fish to cause NMFS to reconsider its jeopardy determination.

In its biological assessment attached to the EIS, NMFS said the winter dredging may affect some over-wintering juvenile fall chinook, and other listed stocks, but the agency couldn't specifically estimate the number of fall fish, embryos or eggs that might be lost from the operations, nor could they estimate the number of adult steelhead that might die from the proposed operations. They did estimate that incidental take of most listed stocks would be " at near zero."

The lower Snake drawdown issue was raised in the plaintiffs' declaration of Bob Heinith, fish biologist with the Columbia River Inter-Tribal Fish Commission. Heinith called for, in part, "...a partial drawdown of the dams during times of year when water flows are relatively high to naturally 'scour' accumulated sediment from the bottom of the river and navigation channel and move it downstream, obviating or reducing the need for dredging," Heinith said both his commission and WDFW recommended the Corps of Engineers undertake an analysis of the drawdown, citing the Corps' own response to WDFW comments in the EIS that said a 10- to 15-foot drawdown "has some potential."

But the Corps also noted that the juvenile bypass system at the dam would be unusable during this time and fish would pass through turbines or over the spillway at Lower Granite Dam. Also, large numbers of juveniles could be trapped in gatewells and die, unless special lift tanks were constructed "that may exceed the dredging costs for the 20-year course of action."

But Heinith pointed out that "gatewell dipping and truck transportation of juvenile salmon to below the dams has been routinely and successfully accomplished at Priest Rapids and Wanapum dams in the mid-Columbia River for over a decade with little fish mortality."

With the powerhouse inactive, an all-spillway route sets up a large eddy below the dam has the potential of creating a region of high predation, says the Corps, but Heinith claimed that dam operations could be modified to reduce eddy formation. He stated that some juvenile fish would be killed from the drawdown/flushing alternative, but some migrants are killed no matter how they pass dams. The alternative, he said, "is likely to yield substantially improved passage and habitat conditions both in the short and long term."

But the Corps said after a drawdown event, invertebrate species would be reduced, shrinking food sources for sturgeon, catfish and other predatory species, with the potential of negatively affecting salmonid smolts. They said shallow water rearing areas would be desiccated, providing "little to no benefit to fish rearing in the area either during drawdown or after water up."

Corps biologist Rudd Turner said for any small drawdown scenario to work, it would probably have to take place along with moderately high natural inflows, but by letting nature do the work there would be no opportunity to deal with contaminated sediments or organic compounds that could be the focus of removal in a standard dredging operation. Though admittedly speculating on the subject, Turner said that when high flows occurred in the river, that didn't necessarily mean the river was moving as fast in the navigation channel to help scour sediment from barge routes.

Feds Won't Appeal
Department of Justice attorney Fred Disheroon said the government will not appeal the ruling. He said he's waiting for the Corps to decide its next course of action. Meanwhile, Corps spokesperson Nola Conway, said her agency is putting together all the paperwork preparatory to dredging next year.

But questions raised by the suit have some stakeholders especially concerned. "The implication of the judge's ruling is that the Corps could draw down the reservoirs," said Glenn Vanselow, director of the Pacific Northwest Waterways Association. "It's our belief that Congress has to make that decision." He said the Corps doesn't have the authority to implement an alternative such as a lower Snake drawdown to scour sediment from the navigation channel.

For now, the Corps is operating Lower Granite reservoir one foot above minimum operating pool to keep Dixon Shaver's barges from running aground, and with NMFS' blessing, plans to keep it that way in the foreseeable future. But the feisty towboater said every annual freshet adds more sediment to the channel and the situation cannot go on indefinitely. "Without the resumption of dredging, we will ultimately lose the ability to raise pools high enough to maintain channel depths," he said in his own comments to the Corps, noting that "if cargo volumes fall because pool depths become too shallow, it will appear that the Snake River projects are less valuable to the region, and the five-year review of breaching determination becomes more favorable to those agencies and eco-terrorists who advocate their removal."

The National Wildlife Federation, which is pushing a nationwide campaign called "Greening the Corps of Engineers," is involved in other ongoing litigation that focuses on the Snake River. They have sued the Corps over alleged violations of the Clean Water Act in the Lower Snake by dam operations, and are major plaintiffs in a lawsuit over the NMFS hydro BiOp, claiming that the document's reliance on unspecified offsite mitigation efforts should not get the hydro system off the hook for a jeopardy decision for listed fish stocks in the Columbia Basin. In December, the group helped sponsor a Portland workshop on "Reforming the Corps of Engineers on the Columbia and Snake Rivers."