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Will Congress Fix Water Litigation?

by Patricia R. McCoy, Idaho Staff Writer
Capital Press, November 18, 2005

BOISE -- From time to time, Congress exercises its checks and balances power and passes new laws to deal with what some call outrageous, out-of-hand court rulings.

Could such a fix be coming in the lawsuits attacking the biological opinions government operation of the Columbia River Basin dams?

There are rumblings and rumors, says Norm Semanko, executive director of the Idaho Water Users Association.

In the meantime, one federal judge in Portland is directing dam operations in the entire basin. New litigation could extend his control to the upper Snake River dams, Semanko said.

The legal maneuvering began with environmentalist lawsuits filed over a bilogical opinion (biop) issued in 2000 under the Clinton administration, he told the Idaho Association of Soil Conservation Districts here Nov. 14.

"That original biop found the Lower Snake River Dams -- those below Hells Canyon -- jeopardize the continuing existence of various fish listed as threatened or endangered under the Endangered Species Act," he said in his keynote address at the IASCD's annual conference.

"A jeopardy finding requires the Bureau of Reclamation and the Army Corps of Engineers to follow reasonable and prudent alternatives to help protect the fish, but some actions were voluntary. The judge ruled that leaving those actions voluntary meant they weren't reasonably certain to occur," Semanko said.

In 2004, the Bush administration issued a new biop saying the dams were no jeopardy to the continuing existence of the fish, which relieved BuRec and the Corps from altering management in ways to protect them. The same judge threw that biop out, he said.

"Whether or not the dams jeopardize fish thus became a prominent issue in the case, which is under appeal in the 9th Circuit Court of Appeals. In the meantime, the overturn of the 2004 biop leaves the 2000 biop in place while the appeal goes forward," Semanko said.

"The judge is allowing the plaintiffs in the case to file appeals for injunctive relief. Some briefs were filed, calling for more flow augmentation. The judge decided he didn't need to hear more testimony. He simply ruled on the briefs, in favor of the environmentalists," he said.

"If the federal agencies had decided to augment flows, they would have had to follow the National Environmental Policy Act. It would have taken years. As it is, the environmentalists did it in a week," he said. "Some time later they came back to the court saying that flow augmentation (bluefish corrects: spill over spillways was the issue here, not flow augmentation which is water coming from other uses upstream.) wasn't working as expected, in part because it impeded the progress of adult fish returning upstream, so the ruling was quietly changed," Semanko said.

A deadline to file new briefs seeking injunctive relief for the year 2006 passed in early November. A whole series have been filed, he said. In the meantime, the Pacific Northwest's entire congressional delegation is looking at the whole issue, questioning the wisdom of letting one judge have that much power over an entire region, he said.

Semanko discussed a wide range of other water litigation, pointing out that population growth is driving a need for more water.

"Across the West, we're realizing our forefathers were pretty smart. They did us a great favor in building storage. We can't solve our needs for water solely on the backs of agriculture. A number of people are looking at the potential for more storage."

Rep. Butch Otter, R-Idaho, has taken a lead in this. Legislation is being considered," he said.

Water was the theme of the four-day IASCD conference.

Related Pages:
Fish Study Center Losing Funding by Joe Rojas-Burke, The Oregonian, 10/18/5

Patricia R. McCoy, Idaho Staff Writer
Will Congress Fix Water Litigation?
Capital Press, November 18, 2005

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