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Judge Puts Lower Snake Dredging on Hold by Mike Lee, Herald staff writer Tri-City Herald, December 13, 2002

A federal judge Thursday stopped the Corps of Engineers from starting lower Snake River dredging next week because environmental groups raised "serious questions" about efforts to maintain the multimillion-dollar shipping channel.

District Court Judge Robert Lasnik faulted the Corps for failing to look at a wider variety of options to reduce the need for dredging, and he faulted the National Marine Fisheries Service for its "apparent failure" to ensure dredging doesn't kill too many salmon the agency is charged with protecting.

The preliminary injunction was greeted by environmental groups as a major victory because it is expected to prevent dredging between Pasco and Lewiston for another year even though it wasn't a ruling on the merits of the case and doesn't necessarily preclude dredging in later years.

"This isn't procedural gamesmanship, and it's not about dam breaching," said Jan Hasselman, the Seattle lawyer who is handling the case for the National Wildlife Federation. "What we are trying to do is hold the government to its own word that it was going to take a different approach to running the river so fish could be restored."

Todd True, attorney at Earthjustice in Seattle, said the region will benefit from Lasnik's decision that will bring more scrutiny to what has been a routine dredging operation until it was first challenged by environmental groups in the late 1990s. "We will have a chance to take another look at this project, including alternatives to dredging that will protect the environment and save the taxpayers money," he said.

The lack of dredging this winter is not expected to seriously impair Snake River shipping. However, shipping lines worry about the continued buildup of sediment that eventually will force them to load barges with less freight.

In late September, the Corps announced plans to perform maintenance dredging this winter on the lower Snake River and McNary reservoir on the Columbia River. Navigation lock approaches at Lower Granite and Lower Monumental dams and port facilities in the Lewiston-Clarkston area were major targets.

Agency spokeswoman Nola Conway said late Thursday afternoon that the Corps had just received the injunction and was consulting with its lawyers. "We are not quite sure what it is going to bring to the process of dredging this year," she said, noting that the window for in-river work is from Dec. 15 to March 1.

Plans for this winter followed completion of the Corps' 20-year plan for managing what was estimated to be a total of up to 3.4 million cubic yards of dredged material. The study, which took four years and cost $3.5 million, includes a recommended alternative that combines maintenance dredging and raising levees in some areas. Some dredge materials would be used to create shallow water sandbars along shorelines of Lower Granite reservoir.

The Corps insisted in court that it evaluated a reasonable range of alternatives, saying in earlier reports that it "was unable to identify any nondredging alternatives that would preclude the need for dredging."

But environmental groups, tribes and some government agencies wanted the Corps to investigate other options.

They include:

• Limiting the need for dredging by encouraging farm and forest practices that would reduce the amount of sediment flowing into the Snake River.
• Using temporary reservoir drawdowns and increased flows to "flush" sediment downstream.
• Light-loading the largest and heaviest barges when the river must be run a minimum level to aid migrating juvenile fish.

The other major issue addressed by Lasnik was federal protections for Snake River fall chinook, which have been shown to spawn near lock entrances.

NMFS determined dredging would not result in the "destruction or adverse modification" of critical salmon habitat. But Lasnik said NMFS failed to explain how that was possible and ruled that environmental groups were likely to succeed on the merits of their claim that NMFS issued an invalid permit to harm a protected species.

NMFS's permit "eliminates a critical check against action that would harm ... or kill more than an acceptable number of protected salmon," the judge said.

Brian Gorman, spokesman for the NMFS in Seattle, had not seen the injunction but said his agency determined that the dredging plan didn't threaten the continued existence of Snake River fall chinook.

"We felt pretty confident when we did our biological opinion that we ... put in the necessary restrictions on the Corps' operation to make sure that these fish were going to be protected," he said. "There isn't any requirement in these circumstances that no fish be killed or that only a tiny number of fish be killed, only that the ... dredging not jeopardize the existence of the fish."