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Corps Asks Court to Scrub Clean Water Suit by Mike O'Bryant Columbia Basin Bulletin - February 9, 2001

Lawyers for the U.S. Army Corps of Engineers this week asked U.S. District Court Judge Helen J. Frye to dismiss a suit seeking it comply with the clean water standards when operating four lower Snake River dams. They said provisions added to the National Marine Fisheries Service 2000 biological opinion address federal Clean Water Act requirements and make the case unnecessary.

However, lawyers for the plaintiffs said the lawsuit applies to years of Corps CWA violations and there is nothing in the 2000 BiOp that will address compliance with the CWA any time soon.

Judge Frye already ruled in March 2000 the Corps must comply with clean water standards 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. In their final chance to make their case in court, the Corps' side put most of their effort into trying to convince Frye that she should put a halt to the lawsuit.

"This case is over," said Beth Ginsburg, a Stoel Rives attorney representing Potlatch Corporation, an intervenor in this nearly two-year old case. "This case is not going to be moot, it is moot now and there is no point in addressing these historic contentions."

Ginsburg said the BiOp and a Corps Record of Decision due to be released in March contain more than 130 reasonable and prudent alternatives that tells the agency, which operates the four dams, what it must do to meet state of Washington water quality standards for temperature and dissolved gas.

Not so, said Kristen Boyles, Earthjustice Legal Defense Fund attorney.

"The biological opinion is not a Corps document, it is a National Marine Fisheries Service document that addresses the Endangered Species Act and we're here under the CWA," she said. "Although I'm happy to hear this ROD is about to come out, it's clear from the briefs and their actions in court, that the Corps has no idea what's required under the law."

She added that the Corps' previous RODs in 1995 and 1998 did not discuss water quality and that this is a window of opportunity for the court to influence how the Corps will operate its dams.

Mary Lou Soscia of the Environmental Protection Agency told the CBB the 2000 BiOp is the first such document that attempts to incorporate CWA concerns, but there is still a lot of work to be done before the CWA is fully addressed by the BiOp. She indicated the BiOp doesn't address all the water quality issues, as the defendants professed, but that it contains a little more than a plan for a plan, as the plaintiffs said.

"It's been a major success that we've been able to integrate the ESA with the CWA," Soscia said. "However, there is still a lot to flesh out regarding clean water decisions."

While there has been some work that balances survival issues with spill and gas, there is still much more work to be done on temperature, she said.

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. The Nez Perce Tribes have intervened and were represented by their own attorney, David Cummins.

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 a temporary waiver when spilling water over the dams to aid in juvenile fish passage.

While the defendant is the Corps, Potlatch Corporation, the Northwest Pulp and Paper Association and the Inland Navigation group have intervened on the Corps' side.

Attorney for the Corps, Fred Disheroon of the U.S. Justice Department, admitted that conditions in the lower Snake River often exceed water quality standards, but he said the plaintiffs have failed to connect those conditions with how the Corps operates its dams.

"The record shows there are water quality problems. No one has denied that," Disheroon said. "But, there is no evidence that operations of the dams have caused the water quality problems."

He said the plaintiffs carry the burden of proof to make the connection between what the Corps decides to do and a water quality violation and they fail to do this.

"The Corps' mission is to operate these multi-purpose projects and it is required to balance all the purposes and to operate the projects with its ability," Disheroon said. Particular actions haven't been challenged. "They simply want the court to take their view of the world that the Corps violates water quality standards and to fix it."

Boyles said the data she has presented came largely from Corps, state of Washington and U.S. Geological Survey records and the Corps knew about the water quality violations.

"They were aware of these violations, but they took no actions to correct them," Boyles said. "Although your honor gave them every opportunity to prove otherwise, the Corps barely supplied any proof. What they did show was some of the worst water quality in the river."

Initially, the Corps believed it did not have to comply with water quality standards, Boyle said.

"Your honor has corrected that view and the Corps shifted its argument saying what it has tried to do is sufficient," she continued. "However, the state standards actually are to ensure the standards are complied with."

Cummins said the Corps was notified of the violations in 1997 by the EPA, along with the states of Oregon and Washington. In a letter they asked the Corps to describe measures it would take at the dams to comply with temperature and TDG water quality standards, and to set a compliance schedule.

"The Nez Perce made the same request," Cummins said. "But, today, little has changed. The Corps has been unable to document its compliance or to explain why it can't."

Cummins said one of the reasons the Nez Perce intervened in this case is because of the Corps' failure to figure the costs of complying with the CWA into its economic assessment of breaching the four lower Snake River dams. "That unfairly lessened the cost to the nation of keeping those dams in place," he said.

James Buchal, an attorney intervening for the defense, suggested the genesis of the lawsuit is about getting rid of the four lower Snake River dams. "But the CWA doesn't outlaw dams," he said. "The CWA anticipated dams, but it didn't outlaw them."

Solar radiation landing on water is not a pollutant, nor is water going over dams, he said.

Guy Stevenson, an attorney representing the Inland Ports, said other laws that govern operations of dams has to do with maintaining a waterway. The CWA can be violated to protect beneficial uses, he said.

Judge Frye said she expected to make a decision on the case in the next one to two weeks, but gave no indication what the decision would be.

Link information:
Army Corps of Engineers, Portland District: www.nwp.usace.army.mil
National Wildlife Federation: www.nwf.org
Earthjustice: www.earthjustice.org