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Agreement may Settle Channel Deepening Challenge by Mike O'Bryant Columbia Basin Bulletin - October 10, 2003

A settlement between the Port of Vancouver and the Seattle-based Columbia River Alliance for Nurturing the Environment (CRANE) that will be announced later today could nullify the only remaining challenge to deepening the Columbia River shipping channel by 3 feet. Six lower Columbia River ports say the project is needed to accommodate deeper draft ships and for the ports to remain competitive.

CRANE challenged the Washington Department of Ecology's issuance of a 401 water quality certification and a Coastal Zone Management Act consistency certification of the project in August, asking the Washington Pollution Control Hearings Board to stay Ecology's decision until the board had an opportunity to hear its arguments. The stay, issued Aug. 26, effectively invalidated Ecology's approval of the U.S. Army Corps of Engineers' plan to deepen the Columbia River by three feet until the Board's weeklong hearing scheduled for this week.

However, the PCHB put the hearing off last week to Oct. 27 while the two parties continue to discuss a settlement that could completely take the issue off the board's calendar.

The parties -- CRANE and the Port of Vancouver -- are silent on the elements of the agreement, but will offer a joint statement today at 2 p.m. at the Port of Vancouver offices. One thing is clear: Sandy Howard of Ecology said her agency is not a party to the agreement, but she declined to talk further about the how the negotiations would impact the certifications.

According to Nina Bell, executive director of Northwest Environmental Advocates, a settlement that addresses the entirety of CRANE's challenge to Ecology's certifications would likely place more conditions on those certifications. The challenge of Ecology's certifications says, among other complaints, that the project does not adequately deal with coastal erosion caused when sand is taken out of the river during dredging. However, the agency's involvement in the settlement talks would be needed to get its agreement to include those additional conditions.

Howard continues to say, as she did in early September, that the state agency's approvals, issued June 23, 2003, to give the project clean water act certification and a Coastal Zone Management Act consistency certification were sound decisions and defensible and it will stand by those decisions.

In addition, CRANE did not name the Port of Vancouver in its challenge to Ecology's certification approvals, but instead had named the Port of Kalama in that challenge. That port also is not involved in this settlement.

According to a report in the Columbian, a Clark County, Wash., newspaper, Paul King, the founder and mainstay of CRANE has for years disputed the port's industrial development activities, including its use of dredge spoils to fill lowlands wildlife habitat surrounding Vancouver Lake. King, a long-time bird advocate and former chairman of Vanalco, an aluminum company that once was located next to port property, but is now out of business, objects to this development, reported the Columbian. The port has proposed developing 1,000 acres in its Columbia Gateway Development project.

Bell is worried that if an agreement is not reached, then another deadline may also not be met. A recent court ruling by Seattle-based U.S. District Court Judge Barbara Rothstein gave state agencies just one year to complete water quality certifications. That deadline for the 401 water quality certification for the channel deepening project comes up November 22. The PCHB originally set the Oct. 10 date of the hearing so that it would have time to consider the complex information it would hear and make the decision in time.

However, Howard said that when setting the Oct. 27 hearing date, the PCHB took into account the time it would need to make its decision and still meet the Clean Water Act deadline.

Throughout CRANE's challenge to Ecology's certification approvals, the Corps has said neither the challenge nor the stay would stop it from issuing a record of decision for the project. In fact, it issued its ROD to the Corps head offices in Washington D.C. in late September, according to Laura Hicks, the Corps' project manager. After a thorough review, she said the Corps would send the final ROD as a courtesy to the Office of Management and Budget.

If an agreement is not reached, both Howard and Eric Merrifield, attorney for CRANE, said they are ready for the five-day hearings before the PCHB.

"We were prepared to go ahead this week, but the negotiators said they needed a little more time," Merrifield said. "This is a massive project (the channel deepening project) that's gone through lots of issues by lots of agencies."

He said much of CRANE's challenge has to do with procedure, "things not considered when they should have been, or not considered at all."

"But the case is not just a procedural argument, but also about real impacts to coastal erosion and biological impacts," he added.

According to Merrifield, Ecology had lined up at least five expert witnesses, the Corps at least four witnesses, the six lower Columbia River ports at least five and CRANE had lined up five expert witnesses to provide testimony at the five-day hearing.

Related Sites:
U.S. Army Corps of Engineers: www.nwp.usace.army.mil