|| August 28, 2000
Re: §401 Water Quality Certification for Columbia River Channel Deepening
On behalf of Northwest Environmental Advocates and American Rivers, we are writing to urge the State of Oregon to request the Army Corps of Engineers waive the statutory one year deadline in which the State must grant or deny the requested §401 water quality certification for the Columbia River Channel Deepening Project. In the alternative, the State should deny the pending §401 certification request outright. One or the other of these actions is required in light of the letter from Donna Darm, Acting Regional Administrator of the National Marine Fisheries Service (NMFS) to Colonel Randall J. Butler, Portland District Army Corps of Engineers (Corps) on August 25, 2000. By this letter, a copy of which is attached for your convenience, NMFS has withdrawn its December 16, 1999 Biological Opinion (BiOp) that was the product of consultation on this project pursuant to the federal Endangered Species Act. While the letter discusses the on-going disagreements between the two federal agencies that have characterized the post-BiOp period, it also highlights several unresolved issues that are highly pertinent to the State's §401 certification for this project.
First, NMFS underscores the fact that it cannot now fully assess, let alone approve, the impact of the project to threatened and endangered salmon and steelhead in the Columbia River Basin because of lack of information. Determining that the project will not result in harm to salmon and steelhead is part of the definition of meeting state water quality standards that require full protection of the beneficial uses. As presumably the State of Oregon does not have lower information requirements nor lower standards of protection for beneficial uses than does NMFS, the State, like NMFS, does not have sufficient information upon which to base the grant of a §401 certification.
Second, in the letter, NMFS explains that new information about the effect of toxic contamination on salmon - which suggests that salmon may be susceptible to a wider range of sub-lethal impacts from certain contaminants, and at lower ranges of exposure, than was previously believed to be true - necessitates withdrawal of the BiOp. This information is also directly related to the State's assessment of water quality impacts of the project to beneficial uses and cannot be ignored.
Third, NMFS points to the imminent issuance by its Northwest Fisheries Science Center of further information on the effects of bathymetry on shallow water habitats of the estuary, habitat upon which salmon and other aquatic species rely. The channel deepening project will alter the bathymetry of the estuary, compounding changes made over the last 100 years by dredging and upstream dams. Once again, this information and analysis goes to the heart of the State's assessment that the project will not harm beneficial uses, including but not limited to salmon.
The State of Oregon cannot possibly issue a favorable §401 certification decision for this project in light of the withdrawal of the BiOp by the preeminent agency in charge of protecting and restoring salmon. Although the State could attach multiple conditions to its §401 certification in an attempt to address the problems, the only condition that would meaningfully address the information gaps identified by NMFS would be one in which the agency grants the certification conditioned on making adequate findings at some unknown time in the future. As this would not provide the basis for taking a final agency action, Oregon has little choice but to request an extension of time from the Corps or to issue a denial of the certification. Any other option would be arbitrary and capricious as it would be based on conjecture rather than sound factual determinations.
We look forward to your reply.
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133 SW 2nd Ave., Portland, OR 97204-3526 (503) 295-0490 FAX 295-6634