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Plaintiffs Respond in Clean Water Suit

by Mike O'Bryant
Columbia Basin Bulletin - November 19, 1999

The complaint against the U.S. Army Corps of Engineers is simple: the Corps is violating the Clean Water Act in its operations of the four lower Snake River dams and it needs to comply with federal law.

So assert lawyers in their reply brief filed with U.S. District Court in Portland this month charging the Corps with violating the CWA.

They say the Corps even admits that waters in the lower Snake River do not comply with water quality standards.

On the other hand, the Corps says it is operating its dams in compliance with the Endangered Species Act and the National Marine Fisheries Service's biological opinions. Plaintiffs disagree with this line of thought.

"...[T]he Corps argues that because it is operating the dams and their associated reservoirs in compliance with the Endangered Species Act, there is nothing more for this court to decide. This argument is specious. Compliance with one federal law, the Endangered Species Act, cannot get the Corps 'off the hook' for compliance with another federal law, the Clean Water Act," the brief says.

The Earthjustice Legal Defense Fund and the Pacific Environmental Advocacy Center at the Northwestern School of Law of Lewis and Clark College in Portland represent 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 (plaintiffs).

In March, they charged the Corps with operating the four dams in violation of Clean Water Act standards for temperature and dissolved gas. The suit asks the court to direct the Corps to comply with those standards and to set a schedule to resolve the problems.

Potlatch Corp., Northwest Pulp and Paper Association, Columbia River Alliance and Inland Ports and Navigation Group have joined the Corps in its defense. The plaintiffs dismiss each of their arguments one at a time. They say Potlatch and Northwest Pulp "generally mimic the Corps' arguments," CRA "spends an inordinate amount of time challenging NWF's standing...and putting forth CRA's own, unsupported view on the plunge of native fish populations..," and Inland Ports "asserts that the Clean Water Act and water quality standards cannot impair navigation...."

Plaintiffs go on to support their claim that federal agencies must comply with federal law, citing court decisions in which federal agencies were required to comply with federal environmental law and specifically the CWA. Congress when passing the CWA, plaintiffs say, had in mind that federal facilities would comply with the law. They say Congress believed federal facilities should be a model for the nation.

Even lacking that requirement, plaintiffs say other dam operators must comply and so should the Corps.

"If a private entity were operating the four dams at issue in this case, section 401 of the Clean Water Act would require it, as a condition of licensing or relicensing for the projects, to present the Federal Energy Regulatory Commission with a certification from the State of Washington indicating that its operation of the dams would comply with Washington's water quality standards."

The plaintiffs continue, saying that even though the Corps doesn't have to apply to FERC and, therefore, isn't required to get a water quality permit from the state, it is still required to comply with the state law.

Plaintiffs say another argument the Corps uses is that the existence of the dams, not their operations, prohibits water quality standards from being met.

"Seeking to divert attention to the existence of the dams and reservoirs rather than their operations, the Corps would have the Court believe that its hands are tied; that it cannot help violating the law; that operation of the dams does not affect the reservoirs or water quality in them; and that somehow the reservoirs and their condition was completely determined by construction of the dams and cannot now be altered."

Plaintiffs also dispute the Corps' claims that water temperature before the projects were installed exceeded state standards and calls its claim an "arithmetic trick." The Corps, it says, used maximum annual temperatures as its benchmark to show that water temperatures are cooler now, but plaintiffs say this is not a valid comparison.

Plaintiffs point out that the "operation of the dams and reservoirs changes the thermal regime so that there is more warm water, for a longer period of time, later in the season than would normally occur....These longer and larger warm periods violate water quality standards, both numeric and narrative, and are harmful to salmon. The fact that on an annual average basis the river may be cooler is neither surprising nor relevant."

Plaintiffs say this representation of cooling water temperatures is misleading.

In all, plaintiffs say there is no dispute in facts: the river does not comply with water quality standards. Where plaintiff and defendant differ are issues of law: must the Corps comply with water quality standards and can plaintiffs seek review of that failure? These are legal issues, plaintiffs say, that the court must decide.

Plaintiffs ask only that the Corps comply with water quality standards and set a schedule showing when it will comply. Others believe plaintiffs also seek removal of the dams. In their initial brief, plaintiffs alleged that removing the earthen portions of the dams to restore a free-flowing river may be the best and least expensive way to restore cool water for salmon and eliminate dissolved gas. However, that is not what they are asking for.

Plaintiffs say that Potlatch and CRA "also argue that NWF will be satisfied with nothing short of removal of the four lower Snake River dams, because, according to these parties, the dams' existence -- and not the Corps' operations -- cause the water quality violations. They then argue that because the Court cannot order dam removal, NWF's claims are not redressable."

Plaintiffs repeat their request, saying they "seek an order and schedule for the Corps to comply with the water quality standards, without which, the Corps' admitted policy is to comply only to the 'extent practicable.'"

They go on to say that it is up to the Corps to say how they will comply, whether by "operational or structural changes," a combination or by getting "money and authority from Congress in order to comply."

Link information:

by Mike O'Bryant
Plaintiffs Respond in Clean Water Suit
Columbia Basin Bulletin, November 19, 1999

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