National Wildlife Federation v. U.S. Army Corps
| Decision Date | 16 February 2001 |
| Docket Number | No. Civ 99-442-FR.,Civ 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, Oregon, 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 (Port of Lewiston, ID, Port of Whitman County, Washington, Port of Morrow, OR, and Shaver Transportation Company, et al.).
The matters before the court are:
1. Plaintiffs' second motion for summary judgment (# 150);
2. Intervenor-Plaintiff Nez Perce Tribe of Idaho's second motion for summary judgment (# 144);
3. Defendant United States Army Corps of Engineers' second motion for summary judgment or a stay (# 162); and
4. Intervenor-Defendants Potlatch and Northwest Pulp and Paper Association's second motion for summary judgment (# 170).
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 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. Specifically, the plaintiffs allege that the Corps owns and operates four dams on the lower Snake River in a manner that causes or contributes to violations of the water quality standards of the State of Washington for temperature and dissolved gas, as well as the antidegradation standard.
The plaintiffs further allege that the Corps issued a Record of Decision in March of 1995 and a Record of Decision in June of 1998 which document how the Corps will operate the twelve dams on the Snake and Columbia Rivers — including the four dams relevant to this case on the lower Snake River in the State of Washington. The plaintiffs allege that the 1995 Record of Decision and the 1998 Record of Decision constitute final agency actions which violate the Clean Water Act because each final action fails to ensure compliance with the water quality standards. Complaint for Declaratory and Injunctive Relief, p. 19, ¶ 51-52.
The plaintiffs seek 1) a judicial declaration that the actions of the Corps violate the Clean Water Act; 2) an order requiring the Corps to comply with the water quality standards of the State of Washington; and 3) an order requiring the Corps to devise a schedule for achieving compliance with these water quality standards as expeditiously as possible. Id. at p. 20.
On August 26, 1999, the court allowed the motions to intervene as defendants filed by Potlatch and Northwest Pulp and Paper Association, Inland Ports and Navigation Group, and Columbia River Alliance.
On September 1, 1999, the court allowed the motion of the Nez Perce Tribe of Idaho to intervene as a plaintiff.
On March 21, 2000, this court denied the cross-motions for summary judgment filed by all of the parties. The court concluded that it had jurisdiction to review the claims of the plaintiffs that the Corps is violating the Clean Water Act by not complying with the water quality standards of the State of Washington. The court stated, in part:
The plaintiffs allege that the 1995 Record of Decision and the 1998 Record of Decision by the Corps violate the Clean Water Act because these final agency actions fail to assure that the dams will operate in compliance with state water quality standards. The United States Court of Appeals for the Ninth Circuit has stated that "[u]nder the Clean Water Act, all federal agencies must comply with state water quality standards." Idaho Sporting Congress, 137 F.3d at 1153. The plaintiffs are entitled to challenge alleged violations of the state water quality standards pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701-706. Oregon Natural Resources Council, 834 F.2d at 850-52.
The Administrative Procedures Act provides, in part, that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This court must determine whether the actions of the Corps were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). In determining whether the Corps' decisions in the 1995 Record of Decision and the 1998 Record of Decision regarding the operation of the dams were arbitrary and capricious, the court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh, 490 U.S. at 378, 109 S.Ct. 1851. The court must consider all of the relevant factors and all of the relevant laws in deciding whether the administrative record shows that the Corps has met its obligations under the Clean Water Act in the 1995 Record of Decision and the 1998 Record of Decision.
The court concludes that summary judgment on the merits cannot be decided without reference to and reliance upon the administrative record supporting the 1995 Record of Decision and the 1998 Record of Decision. The court will allow a period of ninety days for the parties to review the administrative record and submit all relevant references to the court. The court will allow the parties to file motions for summary judgment thereafter.
Opinion of March 21, 2000, pp. 21-22.
All parties have once again moved the court for summary judgment in their favor. Each party has submitted relevant portions of the administrative record in support of its motion for summary judgment.
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).
"Water quality standards" are, in general, promulgated by the states and establish the desired condition of the waterway. Section 1313. The Environmental Protection Agency (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. Sections 1313(c)(2) and 1313(d)(4)(B). 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).
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) waters. 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)."...
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