National Wildlife Fed. v. U.S. Army Corps
| Decision Date | 04 October 2004 |
| Docket Number | No. 03-35235.,No. 03-35237.,03-35235.,03-35237. |
| Citation | 384 F.3d 1163 |
| Parties | NATIONAL WILDLIFE FEDERATION; Sierra Club; Idaho Rivers United, Inc.; American Rivers; Pacific Coast Federation Of Fishermen's Associations; Institute For Fisheries Resources; Washington Wildlife Federation; Idaho Wildlife Federation, Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS, Inland Ports and Navigation Group, Port of Lewiston, Idaho; Port of Whitman County, Washington; Port of Morrow, Oregon; Shaver Transportation Co., et al.; Potlatch Corporation; Columbia River Alliance; Northwest Pulp & Paper Association; Northwest Irrigation Utilities, Inc., Defendants-Intervenors-Appellees, v. Nez Perce Tribe of Idaho, Plaintiff-Intervenor. National Wildlife Federation; Sierra Club; Idaho Rivers United, Inc.; American Rivers; Pacific Coast Federation Of Fishermen's Associations; Institute For Fisheries Resources; Washington Wildlife Federation; Idaho Wildlife Federation, Plaintiffs, v. United States Army Corps of Engineers, Defendant-Appellee, Inland Ports and Navigation Group, Port of Lewiston, Idaho; Port of Whitman County, Washington; Port of Morrow, Oregon; Shaver Transportation Co., et al.; Potlatch Corporation; Columbia River Alliance; Northwest Pulp & Paper Association; Northwest Irrigation Utilities, Inc., Defendants-Intervenors-Appellees, v. Nez Perce Tribe of Idaho, Plaintiff-Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kristen L. Boyles, Earthjustice, Seattle, WA, for the plaintiffs-appellants.
David Cummings, Nez Perce Tribe Office of Legal Counsel, Lapwai, ID, for the plaintiff-intervenor-appellant.
Sylvia Quast, United States Department of Justice, WA, D.C., for the defendant-appellee.
Beth S. Ginsberg, Laurie K. Beale, Stoel Rives, Seattle, WA, for the defendants-intervenors-appellees.
Appeal from the United States District Court for the District of Oregon; Helen J. Frye, District Judge, Presiding. D.C. No. CV-99-00442-FR.
Before BRUNETTI, McKEOWN, and GOULD, Circuit Judges.
Opinion by Judge Gould; Dissent by Judge McKeown
We must decide whether the United States Army Corps of Engineers (Corps) has met its obligation to comply with state water quality standards, as required by the Clean Water Act. Appellants National Wildlife Federation, Sierra Club, Idaho Rivers United, Inc., American Rivers, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Washington Wildlife Federation, and Idaho Wildlife Federation (collectively referred to as "NWF") filed suit in the United States District Court for the District of Oregon, claiming that the Corps's issuance of a May 2001 "Record of Consultation and Statement of Decision" (2001 ROD), regarding the Corps's operation of four dams on the lower Snake River in the State of Washington, was arbitrary and capricious and contrary to law in violation of the Administrative Procedure Act (APA). The lawsuit claimed that the Corps had violated the APA because the 2001 ROD did not address properly the Corps's obligations to comply with the State of Washington's water quality standards for temperature, as required by the Clean Water Act's incorporation of state water quality law. The district court concluded that the 2001 ROD was not arbitrary and capricious or contrary to law, and granted summary judgment to the Corps. We have jurisdiction on appeal under 28 U.S.C. § 1291, and affirm.
The Corps operates the Federal Columbia River Power System, a hydroelectric power project in Montana, Idaho, Oregon, and Washington, which provides about seventy-five percent of the electric power used by the Pacific Northwest region of the United States. Pacific Northwest Region, Bureau of Reclamation, available at http://www.usbr.gov/pn/programs/fcrps/. The electric power generated by the Federal Columbia River Power System is marketed by the Bonneville Power Administration. Four of the dams in this system — the Ice Harbor dam, the Lower Monumental dam, the Little Goose dam, and the Lower Granite dam — are on the lower Snake River1 in Washington state and are the subject of this lawsuit. Each of these dams was built pursuant to Congressional mandate, The River and Harbor Act of 1945, Pub.L. No. 79-14, § 2, 59 Stat. 10, 16 (1945) (River and Harbor Act), and provides navigation, hydroelectric generation, recreation, and incidental irrigation.2
In 1977, Congress amended the Clean Water Act (CWA) to require federal agencies to comply with state water quality standards. 33 U.S.C. § 1323. Thus, for the four dams that are the subject of this lawsuit, the Corps must comply with water quality standards promulgated by the State of Washington.3
The State of Washington designated the lower Snake River suitable for the aquatic life use of "Noncore Salmon/Trout," defined as "[s]almon and trout spawning, noncore rearing, and migration." Wash. Admin. Code § 173-201A-600 & 602.4 Washington state also promulgated a temperature standard for the lower Snake River:
Temperature shall not exceed a 1-DMax of 20.0C due to human activities. When natural conditions exceed a 1-DMax of 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).
Wash. Admin. Code § 173-201A-602.5 Washington state regulations also required that Wash. Admin. Code § 173-201A-310.
These temperature standards are significant because water temperature affects the viability of salmon and steelhead fish in the Snake River. Water temperature affects both the biological productivity of streams and fish migration. In support of its motion for summary judgment, NWF submitted to the district court the declaration of Dale McCullough, Senior Fishery Scientist for the Columbia River InterTribal Fish Commission. McCullough testified that "excessive water temperatures can decrease growth, increase mortality, increase the incidence and virulence of disease, increase competition with warm water fish, increase the predation rate on smolts, and increase the toxicity of many chemical substances." During the summer months, the optimal temperature range for salmon migration is between ten and twenty degrees Celsius. The Corps does not contest that water temperature significantly affects the viability of fish in the lower Snake River.
Water temperature increases resulting from the lower Snake River dams in question were the subject of extensive discussion among the federal and state agencies involved with the Federal Columbia River Power System. As early as 1994, it was the position of the State of Washington Department of Fish and Wildlife that "[f]ederal ... hydropower projects on the mainstem Columbia and Snake rivers have consistently violated state water quality standards for temperature...." Letter of James R. Nielsen, Washington Department of Fish and Wildlife, to Eric Schlorff, Washington Department of Ecology, of 8/11/1994, at 2. In a 1996 letter to the Corps, EPA staff said that "lower Snake River temperatures have recently exceeded federally approved State [of Washington] water quality temperature standards of 20.0C," and that "[s]easonal maximum water temperatures above permissible limits have been documented for a number of years...." Letter of EPA to Gen. Russell L. Furhman, United States Army Corps of Engineers, of 8/12/1996, at 1. While we do not recount all of the inter-agency discussions in the administrative record regarding Federal Columbia River Power System operations and water temperature, the correspondence above is representative of the discussions concerning temperature exceedences in the lower Snake River that took place between state and federal agencies. The Corps does not contest that such discussions took place.
In 1995, the National Marine Fisheries Service (NMFS) issued a "biological opinion"6 concluding that modifications to Federal Columbia River Power System operations were needed to ensure long-term survival of salmon stocks in the Snake River that were protected by the Endangered Species Act (ESA). The Corps adopted the recommendations of the 1995 NMFS biological opinion in a 1995 Record of Decision (1995 ROD). In 1997 and 1998, NMFS issued a supplemental biological opinion recommending further actions to the Corps. The Corps adopted these recommendations in a 1998 Record of Decision (1998 ROD).7
On March 31, 1999, NWF filed this lawsuit, contending that the Corps's 1995 and 1998 RODs were arbitrary and capricious and contrary to law, in violation of the Administrative Procedure Act, 5 U.S.C. § 551 et seq., in that they did not address properly the Corps's obligation to comply with state water quality requirements for temperature, as required by the CWA.8 The district court denied the parties' cross motions for summary judgment and ordered supplemental briefing. Nat'l Wildlife Fed'n v. United States Army Corps of Eng'rs, 92 F.Supp.2d 1072, 1084 (D.Or.2000) ("NWF I").9 After the parties completed supplemental briefing, the district court issued an opinion on February 16, 2001, holding that the Corps had not addressed adequately in the 1995 and 1998 RODs the issue of the Corps's obligation to comply with the CWA. Nat'l Wildlife Fed'n v. United States Army Corps of Eng'rs, 132 F.Supp.2d 876 (D.Or.2001) ("NWF II"). The district court remanded the CWA issue to the Corps for further consideration. Id. at 895.
In May 2001, the Corps issued the 2001 ROD, in which the Corps acknowledged that "[t]he construction and existence of the dams may contribute to a shift in the temperature regime of the [Snake] [R]iver."10 The Corps said it would take additional steps,...
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