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Stay Granted on Dredging by Mike O'Bryant Columbia Basin Bulletin - August 15, 2003

Corps to Move Forward on ROD

The Washington Pollution Control Hearings Board granted on Thursday a temporary stay of 14 days to Seattle-based Columbia River Alliance for Nurturing the Environment (CRANE) that effectively invalidates the Washington Department of Ecology's approval of the U.S. Army Corps of Engineers' plan to deepen the Columbia River by three feet.

However, the stay may not prevent the Corps' from sending to Congress its record of decision, which could result in funding of the project even without a valid Washington state approval for the controversial project.

Regardless of Corps decisions, the temporary stay will stand until the board considers next Wednesday, Aug. 20, whether it should grant a more permanent stay that would be effective until it decides on the merits of CRANE's appeal of Ecology's channel deepening approval. CRANE had filed its first appeal of the CZMA consistency determination before Washington's Shorelines Hearings Board on July 14. It then filed an appeal with the Pollution Control Hearings Board July 23 and, at the same time, with the Thurston County Superior Court. The PCHB, which has jurisdiction over the issue, will not decide on the appeal until as late as May 2004.

The stay was filed to prevent the 401 water quality certification and the CZMA consistency determination from having validity while they are challenged in court. That, according to Eric Merrifield, an attorney for CRANE from the law firm Perkins Coie in Seattle and Olympia, would prevent the Corps from delivering its proposal to Congress for funding while CRANE's appeal runs its course.

"This is unusual, but we know the Corps will issue its Record of Decision soon and without the stay it can tell Congress that it has all the approvals it needs and ask for funding," Merrifield said. "With the stay in effect, the Corps cannot say it has a valid approval."

Matt Rabe of the Corps confirmed that the ROD would state that some state approvals were pending, but that one option for the Corps at this point would be to send the ROD off to Congress in September as planned. That could result in a congressional appropriations for the project, even without the state approvals. "The ROD is just an administrative document, not a trigger that starts construction activities," Rabe said. "It can be written is such a way that says the approvals are coming and, when we get the approvals, we could amend the ROD to reflect that the certifications have been issued." CRANE would prefer that the challenge to Ecology's decision stay within Washington's jurisdiction, which is one of the reasons it is challenging the decision at the PCHB. Once the ROD is issued the case would have to go to federal court and federal courts can only consider federal laws, Merrifield said, adding that a state process should be worked out within the state.

The Corps had intended to complete its ROD sometime in September and send it to its Washington D.C. headquarters for signature and on to Congress for appropriation, said Rabe. Because of the timing, he said the temporary stay would not have an effect on the Corps' ROD.

"We're not planning on taking action on the ROD before next Wednesday (when the PCHB considers a stay while the appeal is decided), so it does not have an effect on us," Rabe said. "Until a decision is made on that, we will continue to stay on our schedule."

In filing the appeal, CRANE had said that Ecology in 2000 had already rejected the Corps' channel improvement project, and that its approval of the project this year was a reversal of that opinion. Ecology hadn't provided any rationale for its reversal and hadn't answered this year the objections raised in 2000, Merrifield said.

CRANE was a co-petitioner with NW Environmental Advocates in a court challenge to the 1999 NOAA Fisheries biological opinion of the channel deepening project. NOAA initially found the project to pose no jeopardy to listed salmon and steelhead species, but reversed itself in 2000, largely due to the court challenge. The Corps, Columbia River ports, NOAA Fisheries and the U.S. Department of Fish and Wildlife worked towards a modified channel deepening plan and NOAA issued a no jeopardy BiOp on the modified plan earlier this year.

While CRANE's appeal was based on several elements of Ecology's review of the channel deepening plan, it focused most heavily on how dredging moves sand in the lower Columbia River Estuary, resulting in significant beach erosion north of the Columbia River jetty.

To get a stay until the appeal is decided, CRANE must show that Ecology's decision on the channel deepening project will do irreparable harm and that the appeal will prevail on at least one of CRANE's claims, Merrifield said, adding that coastal erosion is the group's strongest claim.

Rabe said that once the Corps issues a ROD it will proceed in the process of developing plans and specifications and could potentially begin the project in 2004.

Congress has yet to appropriate money for the project. While a Senate appropriations bill sets aside about $5 million for the project, a similar House bill gives it just $2 million to $3 million, far below a Corps request for $20 million in fiscal year 2003. Money is also coming from states, Rabe said.

"That amount would allow us to begin work on the ecosystem restoration projects and, perhaps, some actual construction (dredging), depending on the amount," he said.

Related Sites:
U.S. Army Corps of Engineers: www.nwp.usace.army.mil