National Wildlife Fed. v. U.S. Army Corps, Civil No. 99-442-FR.
| Decision Date | 21 March 2000 |
| Docket Number | Civil No. 99-442-FR. |
| Parties | NATIONAL WILDLIFE FEDERATION, Sierra Club, Idaho Rivers United, American Rivers, Pacific Coast Federation of Fisherman's Associations, Institute for Fisheries Resources, Washington Wildlife Federation, and Idaho Wildlife Federation, Plaintiffs, Nez Perce Tribe Of Idaho, Intervenor-Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant, Potlatch Corporation, Northwest Pulp and Paper Association, Inland Ports and Navigation Group, and Columbia River Alliance, Intervenor-Defendants. |
| Court | U.S. District Court — District of Oregon |
Craig N. Johnston, Stephanie M. Parent, Portland, OR, Todd D. True, Kristen L. Boyles, Seattle, WA, for Plaintiffs.
David J. Cummings, Nez Perce Tribal Executive Committee Office of Legal Counsel, Lapwai, ID, for Intervenor-Plaintiff Nez Perce Tribe of Idaho.
Kristine Olson, United States Attorney, Thomas C. Lee, Assistant United States Attorney, Portland, OR, Fred R. Disheroon, Special Litigation Counsel, U.S. Department of Justice Environment & Natural Resources Division, Washington, DC, for Federal Defendant.
Richard S. Gleason, Stoel Rives LLP, Portland, OR, Beth S. Ginsberg Stoel Rives LLP, Seattle, WA, Kevin J. Beaton, Stoel Rives LLP, Boise, ID, for Intervenor-Defendants Potlatch Corporation and Northwest Pulp and Paper Association.
Paul M. Murphy, James L. Buchal, Murphy & Buchal LLP, Portland, OR, for Intervenor-Defendant Columbia River Alliance.
Guy C. Stephenson, Schwabe Williamson & Wyatt, P.C., Portland, OR, Walter H. Evans, III, Schwabe Williamson & Wyatt, P.C., Vancouver, WA, for Intervenor-Defendant Inland Ports and Navigation Group.
The matters before the court are:
1. Plaintiffs' motion for summary judgment (# 36);
2. Defendant United States Army Corps' cross-motion for summary judgment (# 64);
3. Intervenor-Defendants Potlatch and NWPPA's motion for summary judgment (# 75);
4. Intervenor-Defendant Inland Ports and Navigation Group's motion for summary judgment (# 83);
5. Intervenor-Defendant Columbia River Alliance's motion to make more definite and certain; motion to strike; joinder in motion for summary judgment; and alternative motion for a continuance (# 81).
On March 31, 1999, the plaintiffs, National Wildlife Federation, Sierra Club, Idaho Rivers United, American Rivers, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Washington Wildlife Federation and Idaho Wildlife Federation, filed this complaint against the defendant, United States Army Corps of Engineers (hereinafter referred to as "the Corps"). The plaintiffs allege that the actions of the Corps in operating four dams — Ice Harbor, Lower Monumental, Little Goose, and Lower Granite — all located on the Lower Snake River, violate the Clean Water Act, 33 U.S.C. §§ 1251 et seq., and its implementing regulations, and the Administrative Procedures Act, 5 U.S.C. §§ 551 et seq.
The plaintiffs allege that the Corps owns and operates these four dams in a manner that causes violations of the water quality standards of the State of Washington for temperature and dissolved gas, as well as the antidegradation standard. The plaintiffs allege that "[t]hese water quality standard violations constitute serious, longstanding, and ongoing violations of federal law that have degraded water quality, impaired beneficial uses, and pushed imperiled salmon and steelhead species to the brink of extinction." Complaint for Declaratory and Injunctive Relief, p. 2, ¶ 4.
The plaintiffs seek 1) a judicial declaration that the actions of the Corps violate the federal Clean Water Act and the Administrative Procedures Act; 2) an injunction directing the Corps to comply with the water quality standards of the State of Washington; and 3) ask the court to set a schedule for the parties to comply with the order of the court. Id. at p. 20.
On August 26, 1999, the court allowed the motions to intervene as defendants by Potlatch and NWPPA, Inland Ports and Navigation Group, and Columbia River Alliance.
On September 1, 1999, the court allowed the motion to intervene as plaintiff by the Nez Perce Tribe of Idaho.
On October 27, 1999, intervenor-plaintiff Nez Perce Tribe of Idaho joined in the motion for summary judgment filed by the plaintiffs.
The Corps owns and operates the four lower Snake River hydro power projects as part of the Federal Columbia River Power System. From the confluence of the Columbia and Snake Rivers looking upstream, the four lower Snake River dams are Ice Harbor, completed in 1961; Lower Monumental, completed in 1969; Little Goose, completed in 1970; and Lower Granite, completed in 1975.
In 1972, Congress passed the Clean Water Act in order "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" through the reduction and eventual elimination of the discharge of pollutants into those waters. 33 U.S.C. § 1251(a). The Clean Water Act provides for two primary sets of water quality measures: 1) effluent limitations; and 2) water quality standards. See Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992).
"Effluent limitations" are promulgated by the Environmental Protection Agency (EPA) and restrict the quantities, rates, and concentrations of specified substances which are discharged from point sources. Sections 1311, 1314. These effluent limitations are translated into enforceable obligations in National Pollutant Discharge Elimination System (NPDES) permits issued to "point source" or end-of-pipe dischargers. Section 1342. The Clean Water Act prohibits the release of pollutants from point sources except in compliance with an NPDES permit. Section 1311. The Clean Water Act provides that any citizen may bring an action against an agency alleged to be in violation of an effluent limitation. Section 1365(a).
"Water quality standards" are, in general, promulgated by the states and establish the desired condition of the waterway. Section 1313. The EPA provides states with substantial guidance in the drafting of water quality standards, and the states must submit the standards to the EPA for review and approval. Water quality standards under the Clean Water Act generally consist of three elements: 1) one or more designated "uses" of that waterway; 2) water quality "criteria" specifying the amount of various pollutants that may be present in those waters and still protect the designated uses, expressed in numerical concentration limits or narrative form; and 3) a provision restricting the degradation of certain waters. Sections 1313(c)(2) and 1313(d)(4)(B).
Congress supplemented the "technology-based" effluent limitations with "water quality-based" limitations "so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels." EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n. 12, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976).
Dams have been treated by the courts as a nonpoint source under the Clean Water Act and are not subject to NPDES permit requirements. See 33 U.S.C. § 1314(f); National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 175 (D.C.Cir.1982).
Pursuant to the provisions of the Clean Water Act, the State of Washington has promulgated the following water quality standards:
1. Water Temperature — The State of Washington has designated the Lower Snake River, throughout its course within the State of Washington, as Class A (excellent) water. WAC 173-201A-130 (98). The general criteria for Class A waters are defined, in part, as follows:
(a) General characteristic. Water quality of this class shall meet or exceed the requirements for all or substantially all uses.
(b) Characteristic uses. Characteristic uses shall include, but not be limited to, the following:
. . . . .
(iii) Fish and shellfish:
Salmonid migration, rearing, spawning, and harvesting.
Other fish migration, rearing, spawning, and harvesting.
WAC 173-201A-030(2)(a) & (b).
The State of Washington has established a specific temperature standard for the Snake River which mandates that the water temperature shall not exceed twenty degrees Celsius due to human activities. WAC 173-201A-130(98)(a) & (b). In addition, "[w]hen natural conditions exceed 20.0C, no temperature increase will be allowed which will raise the receiving water temperature by greater than 0.3C; nor shall such temperature increases, at any time, exceed t = 34/(T + 9)." WAC 173-201A-130(98)(a).
2. Dissolved Gas — The State of Washington has established a water quality criterion for dissolved gas of "110 percent of saturation at any point of sample collection" for Class A waters. WAC 173-201A-030(2)(c)(iii). The State of Washington has granted the National Marine Fisheries Service a specific, temporary waiver of this standard in order to aid in fish passage. The National Marine Fisheries Service 1995 Biological Opinion set maximum levels of dissolved nitrogen at 12 hour averages of 115% (or an instantaneous level of 120%) at dam forebays, the area of water immediately behind the dam, and 129% of saturation (or instantaneous level of 125%) at dam tailraces, the area of water immediately below the dam.
3. Antidegradation Policy — The antidegradation policy of the State of Washington requires that "[e]xisting beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses shall be allowed." WAC 173-201A-070(1).
The policy of the Corps is "to comply with water quality standards to the extent practicable" regarding nationwide operation of water resources projects. Declaration of David J. Ponganis in Support of Defendant U.S. Army Corps' Response...
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