Judge Says Corps Can Start
by Bill Rudolph
A federal judge on Jan. 5 denied a motion by environmental groups and the Nez Perce Tribe to block the U.S. Army Corps of Engineers from dredging the navigation channel in the lower Snake River.
As a result, two areas will get immediate attention to return the navigation channel to its specified 14-foot depth--below the Ice Harbor Dam lock (9 feet now) and near the confluence of the Clearwater and Snake rivers, where the channel is only 7 feet deep in some places.
In his opinion filed two days later, Judge James Robart of the U.S. District Court for the Western District of Washington said the groups' motion arguing that dredging would cause the "possibility" of irreparable harm, mainly to lamprey, did not meet the legal standard outlined by the U. S. Supreme Court in a 2008 decision that found plaintiffs who file an injunction must prove the likelihood of irreparable harm, rather than simply the possibility of it.
Environmental groups used the "possibility" argument to successfully block the Corps' dredging plans in 2002 and 2004, actions that led to a settlement agreement allowing the Corps to dredge in the lower Snake River during the winter of 2005-2006 and develop a long-term sediment management plan by 2009. But the Corps did not complete its plan and record of decision until late 2014, and no dredging has occurred over the past eight years.
Robart also ruled that the larger public interest trumped the possibility of harm from dredging. He noted that NOAA Fisheries' hydro BiOp calls for operating the reservoir behind Lower Granite Dam within one foot of minimum operating pool for the benefit of ESA-listed salmonids (for faster passage), an action that sometimes must be adjusted to keep towboats and barges from grounding in the channel where sedimentation has reduced the channel depth.
The judge also found that economic interests would suffer, and safety risks to inland barge operators, and the possibility of a grounding that could cause a toxic spill, outweighed any potential harm to lamprey and listed salmonids from dredging operations.
Robart said he would issue a scheduling order to make sure the case is resolved in a timely manner. He chided both the Corps, for taking so long to produce their sediment management plan, and the plaintiffs, "who sat on their rights, and did not bring the Corps' delay to the Court's attention. Although the Corps' delay certainly appears excessive, plaintiffs also had an obligation to seek enforcement of their rights, and their utter failure to do so for more than five years is also viewed with disfavor by this court."
The groups filed suit against the Corps' ROD Nov. 24 and filed the motion for preliminary injunction two days later. In their motion, the groups said the Corps was wrong to assert that the channel needed dredging "immediately," because it had taken years for the federal agency to complete a sediment plan to guide its actions.
They also said the Corps had relied on a faulty EIS, which included only two alternatives (reservoir control and dredging), and failed to examine other ways to control sediment, which may increase as a result of a changing climate, since both more forest fires and precipitation are expected in the future.
Plaintiffs include the Friends of the Clearwater, Idaho Rivers United, Institute for Fisheries Resources, Nez Perce Tribe, Pacific Coast Federation of Fishermen's Associations, Sierra Club, and Washington Wildlife Federation.
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