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Plaintiffs Say Corps not Complying with Clean Water Act by Mike O'Bryant Columbia Basin Bulletin - October 20, 2000

Drawing on U.S. Army Corps of Engineers' own documents, the National Wildlife Federation's says the Corps not only must meet water quality standards at the four Lower Snake River dams, but that it has failed to take all steps identified by others that would help bring the dams into compliance.

In its most recent brief, the Corps conceded water quality standards have been exceeded in the Snake River, but said plaintiffs failed to prove that those violations were caused by the way the Corps operates the dams. In that brief, the Corps downplayed its previous statements that it is not legally required to meet Clean Water Act standards at the dams, but that it felt a responsibility to try.

NWF continues to disagree with that line of thought, saying in its brief that it is a "fundamental flaw in the Corps' approach...that it converts a legal duty to actually comply with these standards into a limited responsibility to try."

"[T]he Washington water quality standards for temperature, dissolved gas, protecting beneficial uses, and nondegradation that apply to the lower Snake River are not drafted in terms of 'substantial efforts' or compliance whenever practicable or convenient, but in terms of actually ensuring that water quality meets the applicable standards," the brief says.

The brief goes on to say that if the court accepts that argument, it "would rewrite its mandatory legal duties as optional, aspirational goals.... Limited effort, assertions of commitment, and even good intentions cannot substitute for compliance with the law."

NWF filed this month its most recent document of the second round of briefings in U.S. District Court. A March decision by Judge Helen Frye ruled that the Corps must comply with the Clean Water Act when operating the four dams, but she put off her decision whether the Corps had actually violated the CWA until administrative records could be reviewed.

The Corps and plaintiffs were given 90 days to do that. In its brief, the Corps proposed the court put off its decision until the National Marine Fisheries Service wraps up its 2000 biological opinion of the Columbia River federal hydro system, something the Corps says may satisfy the plaintiffs' concerns. But plaintiffs, who ask for relief now, say that decision began as a 1999 BiOp, is now a 2000 BiOp, and may not be final until 2001.

Plaintiffs in the suit are the National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resource, American Rivers, Sierra Club, and Idaho Rivers United. The plaintiffs are represented by Earthjustice and the Pacific Environmental Advocacy Center at the Northwestern School of Law of Lewis and Clark College in Portland.

They charged the Corps with operating the four dams and reservoirs in violation of Clean Water Act standards for temperature and dissolved gas, both set by the Washington Department of Ecology. The standards are 20 degrees Celsius (68 degrees Fahrenheit) for temperature and 110 percent total dissolved gas, although the state grants the National Marine Fisheries Service a temporary waiver when spilling water over the dams to aid in juvenile fish passage.

Plaintiffs asked the court to direct the Corps to comply with water quality standards, which it has done, but also to declare the Corps in violation of the CWA, which the court is considering in this second round of briefs.

In its brief, NWF lays out what appears to be a simple test, asking "not whether the Corps has acted rationally or reasonably in some abstract sense," but whether it recognizes its legal responsibilities under the CWA and whether its actions meet those duties.

It says, "the administrative record and the 1995 and 1998 [Record of Decisions] demonstrate that the Corps has misconstrued or ignored its legal duties and, consequently, has made arbitrary decisions that do not comply with state water quality standards."

NWF said the Court offered the Corps an opportunity to identify documents in the administrative record that show the 1995 and 1998 RODs reach decisions that comply with state water quality standards, but that the "Corps largely has declined this invitation."

The NWF said that record confirms the Corps was aware in both 1995 and 1998 that its operation of the lower Snake River dams affected water quality, but "the agency did not take available steps to comply with the law." And, NWF said, there were steps state and federal agencies and tribes were recommending to the Corps in 1996, 1997 and 1998.

"While these solutions included steps to provide short-term temperature relief at the dams, ...(reviewing cool water releases from Dworshak reservoir), they also encompassed identification of long-term operational and structural modifications that would affect river temperature and allow the Corps to meet its obligations under the Clean Water Act," the brief says.

One of those strategies is the natural river operation strategy, which has been identified by the Corps as the best way to eliminate violations of water quality standards for temperature and dissolved gas., according to NWF. It says the Corps' own actions include structural modifications that address some violations of the dissolved gas standards, ..."but leave other violations of this standard unaddressed even though they are caused by operational choices...(noting Corps' rejection of NMFS request to reschedule maintenance work to avoid dissolved gas standard violations)."

"Indeed, virtually every federal and state agency, other than the Corps, has recognized that the Corps' actions in determining how to operate the lower Snake River dams cause, and could correct, violations of the governing water quality standards," the brief states. "The Corps' rigid distinction between dam operations and dam existence is a red herring."

NWF asked the court to reject the Corps' effort to "stand the law on it head and dress up its failure to act as a legally adequate 'effort' to comply with state water quality standards."

Finally, NWF asked for three forms of relief :

• declare the Corps' actions violate the CWA and state water quality standards;
• order the Corps to comply with its legal duties;
• order the Corps to set a schedule for complying with the law.

The court has not yet set a date for hearing oral arguments.