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Judge Dismisses Suit Against Snake River Dredging by Laura Berg NW Fishletter, March 7, 2016

$8.45 per ton transportation savings, compared to other forms of transportation.
... was sound, but an even higher figure of $10.90 per ton was likely more accurate.

U.S. District Judge James Robart ruled Feb. 9 against attempts by Idaho Rivers United (IRU), other environmental groups and the Nez Perce Tribe to prevent the U.S. Army Corps of Engineers from dredging the lower Snake River.

Finding for the Corps, along with the Inland Navigation and Ports Group (INPG), Robart dismissed the suit. He said the plaintiffs failed to establish that the Corps' recent dredging or its long-term programmatic sediment-management plan harmed salmon and lamprey.

The Western District of Washington federal court said the Corps' actions complied with the National Environmental Policy Act (NEPA). The court also did not disagree with the Corps' claims that the Flood Control Act of 1962 and its mandate for a navigation channel of specific dimensions could trump other considerations.

"This ruling is very positive news," said Kristin Meira, executive director of the Pacific Northwest Waterways Association. The intervenor-defendant INPG is a subset of her trade association.

"We are pleased the Court recognized the Corps' thoughtful approach," Meira said in a news release.

"The Corps created a plan that gives them the flexibility to evaluate sediment in the channel, then determine the most efficient and environmentally friendly way to keep this vital trade corridor open," she said.

The plaintiffs had a different assessment.

"While we are disappointed with the judge's decision," said Kevin Lewis, conservation director for Idaho Rivers United, "it doesn't change the fact that the lower Snake transportation system is broken and requires a massive taxpayer subsidy every year to operate. In the meantime, Idaho's iconic wild salmon and steelhead species continue to hover on the brink of extinction."

The dispute over lower Snake River dredging dates from 2002 and litigation that included the current plaintiffs.

As part of a 2004 settlement, plaintiffs agreed not to contest the Corps' planned dredging in 2005-2006, while the Corps agreed to establish a long-term Snake River sediment-management plan in compliance with NEPA.

While drafting the plan, the Corps discovered accumulated sediment was clogging the navigation channel at the confluence of the Snake and Clearwater rivers in the Lower Granite reservoir and at the downstream approach to the lock at Ice Harbor Dam.

After evaluating alternatives and potential environmental impacts, Army Corps engineers decided dredging was the way to remove the sediment. The Corps issued the final EIS for its dredging operation on Nov. 14, 2014.

The plaintiffs then filed a motion to stop the dredging. Robart denied the requested preliminary injunction Jan. 12, 2015, and sediment removal began. A Corps contractor completed the dredging by the end of February.

On May 14, 2015, plaintiffs filed a motion asking the court to find that the dredging and the long-term sediment-management plan violated NEPA and the Clean Water Act.

The defendants--the Corps and the Inland Port and Navigation Group--disagreed and sought dismissal of the plaintiffs' motion, which they won with Robart's new ruling. The judge heard oral arguments in the case on Feb. 2.

In his Feb. 9 order, Robart wrote that IRU, the tribe and other plaintiffs failed to establish factual evidence of actual harm to fish, fishermen or members of the tribe, and instead made sweeping claims and generalizations about hypothetical injury.

Without harm or injury, the court concluded the plaintiffs lacked standing to challenge the Corps' 2015 dredging and its programmatic sediment-management plan.

Furthermore, the court said, the Corps did not violate NEPA's requirement to consider a reasonable range of alternatives. The Corps said it looked at alternatives to its 2015 sediment removal, but only analyzed the dredging option and the no-action option because non-dredging alternatives would be ineffective in addressing immediate navigational impairments.

The Corps maintained that the navigation channel needed to be re-established to the 14-by-250-foot dimensions required in the Flood Control Act of 1962. Robart said the Corps' interpretation of the act was "reasonable" and he deferred to the agency's judgment.

The plaintiffs alleged the Corps had not taken a "hard look" at the effects of dredging on Pacific lamprey as required under NEPA. The court disagreed, saying the federal agency's reliance on a 2011 survey was reasonable.

The plaintiffs questioned the Corps' analysis of climate-change impacts. The plaintiffs referred to a U.S. Forest Service study that said increased forest fires in the area will increase sediment loading in the lower Snake River.

The Corps concluded--and the court deferred to the agency's determination--that it "cannot assume that an increase in sediment loading will directly relate to an increase in sediment accumulation that would interfere with navigation," the court's opinion stated.

Plaintiffs' largely procedural assertions regarding the Corps' violations of the Clean Water Act were dismissed.

The court also did not buy the plaintiffs' arguments regarding a cost-benefit analysis. The Corps said a cost-benefit analysis was unnecessary under NEPA. Congress had already determined the navigation channel should exist at a prescribed depth and width and had appropriated funds 27 times reaffirming the flood-act requirements, the Corps argued.

Nevertheless, the Corps used economic indicators to determine whether channel maintenance was warranted, and concluded a cleared channel would yield up to $25 million in benefits and $12.6 million in costs.

Plaintiffs, on the other hand, argued the Corps overstated benefits and relied on old data from 2002.

In response to similar public comment, the Corps asked its Center for Expertise for Inland Navigation to review the $8.45 per ton transportation savings, compared to other forms of transportation. The center's expert said the Corps' per-ton figure was sound, but an even higher figure of $10.90 per ton was likely more accurate.

In its news release, the Pacific Waterways Association emphasized the economic role of lower Snake River dams. "In 2012, nearly 10 percent of all U.S. wheat exports moved through the locks on the Snake River. Together, the Columbia and Snake Rivers move nearly 50 percent of the nation's wheat, making this river system the country's top wheat export gateway."

"Snake River navigation provides good-paying jobs for the Lewis-Clark Valley," Port of Clarkston Manager Wanda Keefer said in the release, "and we could not be happier that our farmers, cruise boats and other customers will be able to continue to rely on this important federal navigation channel."