Court Injunction Halts Lower Snake River Dredging Planby Barry Espenson
Columbia Basin Bulletin - December 13, 2002
A Seattle-based U.S. District Court judge on Thursday issued a preliminary injunction prohibiting navigation channel dredging on the lower Snake River that was scheduled to begin on Dec. 15.
Both sides in the lawsuit agree that the injunction effectively scuttles dredging for the season.
The original lawsuit was filed by the National Wildlife Federation, Washington Wildlife Federation, Idaho Rivers United, Idaho Wildlife Federation, Pacific Coast Federation of Fishermen's Association, and the Institute for Fisheries Resources against the U.S. Army Corps of Engineers. The Nez Perce Tribe of Idaho filed papers with the court supporting the coalition.
"This injunction gives us the 'time out' we need to resolve the legal and scientific problems that the Corps has created, and prevents further destruction of important habitat and water quality in the meantime," said Jan Hasselman, counsel at the National Wildlife Federation's Northwestern Natural Resource Center in Seattle.
The injunction holds sway until the federal judge, Robert Lasnik, rules on the merits of the case. And that likely will take several months.
"The difficulty is that the dredging needs to take place during the time it was scheduled," according to Fred Disheroon, attorney with the Department of Justice's Environmental and Natural Resources Division. That work window is from Dec. 15 to March 1 when the fewest number of migrating salmon and steelhead are in that stretch of the river.
The lawsuit charges that the Corps' Environmental Impact Statement on the long-term dredging strategy includes four options that are virtually identical, except that the agency varies the location for the dredge spoil deposits. All four alternatives include 20 years of dredging and substantial increases in the levees in Lewiston, Idaho, the lawsuit says.
Corps and National Marine Fisheries Service officials are now reviewing the preliminary injunction before deciding on a next course of action. The only immediate legal recourse is to request a stay of the judge's order.
"The judge would basically have to change his mind," Disheroon said. If they pursue a stay, federal attorneys would likely emphasize "compelling" arguments that the court ignored in the injunction order. The judge heard oral arguments related to the request for an injunction Wednesday.
As an example, Disheroon said, a lack of dredging, in some scenarios, could hamper the salmon and steelhead transportation program called for in the 2000 federal hydrosystem biological opinion that is intended to avoid jeopardizing the survival of listed salmon and steelhead.
"How big of a problem it is depends on how much water is available next year," Disheroon said. The Corps has not been able to dredge the channel since the winter of 1997-98. The Corps has in recent times kept the reservoir levels about a foot higher than is considered optimal to allow the draft needed by the barges carrying farm produce and other products up and down the river, as well as fish.
If next spring's runoff is low, that will limit the Corps ability to maintain the higher reservoir levels that may be necessary to move fish and commercial barges up and down the river, Disheroon said.
Lasnik's order said the U.S. Army Corps had failed to resolve major legal, scientific and environmental issues in developing its strategy for the project.
The Corps had planned to dredge the navigation channel at the confluence of the Snake and Clearwater rivers, several port facilities in the Lewiston-Clarkston area, several recreation facilities in Lower Granite and Little Goose reservoirs, navigation lock approaches to Lower Granite and Lower Monumental Dams, and other areas.
The coalition of conservation and fishing organizations that filed the lawsuit called the decision a victory for clean water, wildlife, and taxpayers.
"The Corps tried to tell the court a fish story about the big one that got away when it argued that dredging wouldn't harm the Snake River," said Todd True an attorney at Earthjustice which represented the plaintiffs. "The court didn't bite and as a result everyone in the Northwest will benefit. We will have a chance to take another look at this project, including alternatives to dredging that will protect the environment and save taxpayers money."
"It took a lawsuit to affirm what we've been saying all along about this project," said Hasselman. "Plans to dredge the Snake cannot proceed until the agency answers legal and scientific questions and considers cost-effective alternatives that will better protect the environment."
The court agreed that the Corps' EIS ignores alternatives to dredging and levee construction that would achieve its barge navigation goals on the Snake River and better safeguard the environment and taxpayers.
Federal and state agencies, including the Environmental Protection Agency, Idaho Department of Fish and Game, and Washington Department of Fish and Wildlife, as well as several tribes and conservation groups, had urged the Corps to consider alternatives that would have reduced the need for dredging, according to a press release from the coalition.
For example, the Corps could reduce the amount of sediment flowing into the Snake River by promoting healthier streamside habitat that would naturally control erosion. A recent study indicated that implementing existing programs could reduce the amount of sediment flowing into Lower Granite reservoir by 37 percent, the groups say.
Similarly, the Corps was urged to consider using high spring flows to "flush" sediments and juvenile salmon downstream naturally.
The court said that serious legal questions were raised by the Corps' failure to consider such alternatives in the EIS.
The court also found deficiencies in the favorable "biological opinion" offered on the project by the National Marine Fisheries Service, the agency responsible for protecting salmon and steelhead listed under the Endangered Species Act. The court said that NMFS had failed to ensure that dredging would not destroy critical habitat for fall chinook salmon, as required by the law.
The court also found that NMFS had failed to adhere to the law's requirement to ensure that the project would not harm more salmon than anticipated, the groups said. Finally, the court agreed that proceeding with dredging this winter could "irreparably harm" salmon and steelhead in the Snake.
"The Corps has 'cooked the books' to justify this project without a thought for the thousands of commercial fishermen who have lost their jobs as a result of the Corps mismanagement of the Columbia and Snake Rivers," said Glen Spain of the Pacific Coast Federation of Fishermen's' Associations. "The sooner we can move ahead with real salmon recovery in the Columbia, the sooner that those family wage jobs will be restored."
Corps officials in late July released its final report on a long-term "Dredged Material Management Plan and Environmental Impact Statement" on lower Snake River and McNary reservoirs. Brig. Gen. David A. Fastabend, the Corps' Northwestern Division commander, signed the Record of Decision Sept. 27, triggering the long-term strategy to manage dredged material removed from the four reservoirs on the lower Snake River and McNary reservoir on the Columbia River.
The Record of Decision completed a four-year, $3.5 million study with a recommended alternative that combines maintenance dredging, "beneficial use" of dredged materials, and raising levees. The Corps developed the plan for the navigation channel maintenance in cooperation with the EPA.
Among those beneficial uses will likely be the creation of fish habitat, the Corps says. That shallow-water habitat would be accomplished by using bottom-dump barges to transport and deposit the dredged material. Finer sands and silts will be used for a base and coarser sands, gravels and cobble would be placed over that base to provide a favorable substrate for juvenile salmonid rearing and resting.
The Corps attempts to maintain a 14-foot deep and 250-foot wide navigation channel through the reservoirs. These reservoirs are part of an inland navigation system that provides slackwater navigation from the mouth of the Columbia River near Astoria, Ore., to port facilities on the Snake and Clearwater rivers in Clarkston, Wash., and Lewiston, Idaho.
The Corps put together an interim dredging plan in 2000. But the National Marine Fisheries Service did not agree with the Corps' findings that the interim dredging would have insignificant impacts to listed fish. A NMFS letter requesting further consultation expressed concerns about potential loss and disturbance of habitat from dredging and dredge disposal and water quality impacts caused by the "remobilization of sediments."
The Corps decided last year to forgo an interim plan and concentrate on completing the 20-year EIS -- more comprehensive analysis than had been conducted for the interim process.
The NMFS this year issued a "no jeopardy" biological opinion regarding the plan's potential impact on salmon and steelhead listed under the Endangered Species Act.
Dredging plan: www.nww.usace.army.mil/dmmp
Corps, Walla Walla: www.nww.usace.army.mil
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