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Corps Must Comply with Clean Water Standards by Eric Barker Lewiston Tribune, February 17, 2001

Ruling focuses on lower Snake River dams

A federal judge has ordered the U.S. Army Corps of Engineers to address actions it can take to ensure its dams on the lower Snake River comply with the Clean Water Act.

Judge Helen Frye of Portland gave the corps 60 days Friday to address ongoing water quality problems at the dams.

Environmentalists and the Nez Perce Tribe hailed the order as a victory for salmon and steelhead listed under the Endangered Species Act.

"This decision is a huge victory for all who care about the salmon and clean water," said David Cummings, an attorney for the tribe. "Judge Frye's decision confirms that the corps, like everyone else, must comply with the Clean Water Act."

The tribe and environmental groups sued the corps on the grounds its operation of Lower Granite, Little Goose, Lower Monumental and Ice Harbor dams on the Snake River violate standards for temperature and dissolved gas set by the state of Washington.

They said the dams cause the Snake River to exceed the 68-degree temperature standard by slowing the river and increasing the water surface area exposed to the sun. Temperatures above 68 degrees are considered harmful to juvenile and adult salmon.

In the spring, when the corps spills water over the dams, dissolved gas levels climb above the 110 percent standard set by Washington state.

Frye agreed that the corps failed to address Clean Water Act compliance when it issued records of decisions in 1995 and 1998 regarding operation of the federal hydropower system in the Snake and Columbia rivers.

A spokesman for the corps said he had not yet seen the ruling and declined to comment. "Once we receive the decision, we will examine it to determine its requirements and impacts," said Dutch Meier at Walla Walla.

If the corps is made to alter the dams to ensure water quality standards are met, it will surely cost millions of dollars. However, it is not clear that the corps will have to do that. Frye's order says that the corps must address the issue but does not say it must solve the problems.

James L. Buchal, an attorney representing the Columbia River Alliance that intervened in the case on the side of the corps, said the agency was guilty of violating the Administrative Procedures Act and not the Clean Water Act.

He said the corps simply failed to explain what it has done to address temperature and dissolved gas standards. He maintains that it is the existence of the dams that causes the temperature and gas problems, not the way the corps operates them.

The corps, he says, can not be held liable for water quality violations caused by the mere existence of the dams. He also said high temperatures in the Snake River are a natural occurrence and the river will be out of compliance whenever the air temperature reaches into the 90s.

"From our perspective, the corps doesn't have the authority to blow up the dams and so you can't say the corps is violating the act by not blowing up the dams."

But Kristen Boyles, attorney for the Earth Justice Legal Defense Fund at Seattle, said the corps needs to say what it will do to meet water quality standards and not just plead that it's not possible to meet them.

"If that is what they end up doing, we are going to be back in court because they haven't ever tried to comply. All of a sudden saying we can't do it isn't going to get them off the hook."

The plaintiffs brought the suit in part because they felt the economic cost of complying with the Clean Water Act has not been adequately addressed in a corps study on the best way to pass juvenile salmon and steelhead around the dams.

One alternative of that study is to breach the dams. But failing to measure how much it would cost to modify the operation of the dams to mitigate temperature and dissolved gas problems skewed the economics in favor of keeping the dams, they charge.

"The tribe hopes that this decision will finally ensure that the corps will consider the costs of compliance with all laws when it considers the future configuration of the hydro system," said Samuel N. Penney, chairman of the Nez Perce Tribe.

The suit was brought by the National Wildlife Federation, Sierra Club, Idaho Rivers United, American Rivers, Pacific Coast Federation of Fishermen's Association, Institute for Fisheries Resources, the Washington and Idaho Wildlife Federations and the Nez Perce Tribe.

The Columbia River Alliance, Potlatch Corp., Northwest Pulp and Paper Association, Inland Ports and Navigation Group intervened on behalf of the corps.