Judge Orders Change in Damsby Jonathan Brinckman
The Oregonian, February 17, 2001
Four Snake River reservoirs violate the Clean Water Act
by warming the water, which threatens fish, the ruling says
A federal judge in Portland on Friday ruled that the U.S. Army Corps of Engineers violates the Clean Water Act with its four hydroelectric dams on the lower Snake River and gave the agency 60 days to come up with a new operating plan that would cool river temperatures for the benefit of salmon.
The ruling by U.S. District Judge Helen J. Frye has enormous implications because it shows that the corps must meet federal environmental laws even when electricity is in short supply. The dams, situated in Eastern Washington, generate an average of 1,200 megawatts of electricity, or about 4 percent of all power produced in the Northwest.
The ruling said the agency must ensure that the dams, which store and warm water before release through turbines, do not overheat the Snake River and cause dissolved gas levels to increase beyond standards set to protect salmon, regardless of the cost.
"The operation of the dams on the lower Snake River has a significant effect on the exceedences of state water quality standards," Frye wrote in an opinion released Friday afternoon. "It was a clear error of judgment by the corps not to address compliance with its legal obligations under the Clean Water Act."
Corps officials Friday could not say what they would do about the dams.
"Until we get the opportunity to study the ruling in detail it would be premature and speculative to make any definite statements on what our next actions will be," said Dutch Meier, a spokesman for the corps.
The ruling comes two months after the National Marine Fisheries Service, the federal agency responsible for endangered salmon, ruled that the four dams need not be breached to aid fish. The debate on whether to breach dams -- taking them out of generation in favor of restoring a swift, cool river -- had persisted for years and divided conservationists from river users, among them bargers and farmland irrigators.
Conservationists who brought the legal action said Friday's ruling shows that the dams should -- and, ultimately, will -- be breached.
"It's clear that the least expensive way of complying with the Clean Water Act is breaching the dams," said Todd True of the EarthJustice Legal Defense Fund in Seattle, an attorney representing the eight conservation groups that sued.
True said the dams, which now are generating about 400 megawatts of power because water flows are low, cause more harm than benefit to the Pacific Northwest. "What these dams do for energy is less than a drop in the bucket," he said. "What they do to kill salmon is huge."
Ice Harbor, Lower Monumental, Little Goose and Lower Granite dams -- all between Pasco, Wash., and Lewiston, Idaho -- were built between 1961 and 1975. Their reservoirs broaden and slow the river, allowing water to be heated by the sun and causing it to exceed a temperature standard of 68 degrees for weeks at a time, according to the U.S. Environmental Protection Agency. Temperatures warmer than 68 degrees can be lethal to salmon.
Releasing water from reservoirs behind the dams increases the level of dissolved gas in the river. Excessive levels of dissolved gas cause a condition in fish similar to the bends.
Among the possible ways of meeting Clean Water Act standards while leaving the dams in place are releasing more cold water from inland reservoirs or spilling less water over Snake River dams.
The corps argued in court that the Snake River dams are not the only cause of warm water temperatures and said it was doing its best to operate the dams in a way that minimizes environmental harm. In her ruling, Frye agreed that the corps was not the sole cause of temperature violations but said the corps is responsible because its operation of the dams "has a significant effect" on those violations.
Frye ordered the corps to issue a new document within 60 days outlining its plan for complying with provisions of the Clean Water Act.
"This decision is a huge victory for all who care about the salmon and clean water," said David Cummings, an attorney for the Nez Perce Tribe, which joined the National Wildlife Federation, the Sierra Club, American Rivers and five other groups in the suit.
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