Environmental Laws Should Prevent Channel Deepening
Federal Regulation and Authorization
The federal government, in the form of Congress, must both authorize federal projects such as channel deepening as well as appropriate funds to support them. In some cases federal agencies ensure that the project meets federal environmental laws, such as the Endangered Species Act. However, in other cases, such as the Clean Water Act, it is the state agencies that assure compliance.
Water Resources and Development Act (WRDA)
The Water Resources and Development Act, commonly known as WRDA (wur' da), is a bill passed biennially by Congress that authorizes and appropriates federal funds for Corps projects. The Corps was given authorization to proceed with the channel deepening project in the 1999 WRDA. In order to maintain that authorization, the Corps was required to provide Congress with a Chief of Engineer's Report by December 31, 1999. The Corps almost missed this deadline because it had waited so long to secure approvals pursuant to the Endangered Species Act from the National Marine Fisheries Service (NMFS) and the U.S. Fish & Wildlife Service. The Corps asked the reviewing agencies to only review the Columbia portion of the project, and omit the Willamette portion, despite the fact that it subsequently included the Willamette in its Chief of Engineer's Report. The Corps is now seeking appropriations of funds in WRDA 2000 to support project construction. In a letter dated , NWEA requested that the Corps withdraw its Chief of Engineer's Report based on NMFS' retraction of its approval of the project.
The National Environmental Policy Act (NEPA)
The National Environmental Policy Act (NEPA) requires the evaluation of costs and benefits for federally-supported projects such as channel deepening. To meet the requirements of NEPA, the Army Corps prepared an Environmental Impact Statement (EIS). An EIS is intended to lay out the alternatives for achieving the goals, evaluate the environmental effects and the costs, and examine the need for and benefits of the project. Following two public comment periods, the Final EIS was issued in August 1999. NWEA's comments addressed a broad spectrum of flaws and omissions in the document. The final step in the EIS process requires the Corps to issue a Record of Decision (ROD) in which it chooses which alternative it will pursue. The Corps was expected to issue the ROD for channel deepening in February, 2000 but as of October 2000, it has not yet done so.
The Endangered Species Act (ESA)
The Endangered Species Act (ESA) requires the Corps to consult with two federal agencies, the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USF&WS), if a project is likely to harm species that have been designated by either agency as threatened or endangered. NMFS is in charge of evaluating fish and wildlife that live in the ocean whereas USF&WS evaluates resident fish, birds, and mammals. In the case of channel deepening, the Corps asked the two agencies for consultation on the Columbia River portion of the project alone, omitting the Willamette River. Both agencies were under intense time pressure from the Corps to complete their formal approvals - termed Biological Opinions or "BiOps" - prior to the end of 1999 to enable the Corps to report to Congress that it had met the terms of its authorization. Despite their complaints, both agencies delivered their BiOps to the Corps in mid-December, 1999, providing their approval of the project. In August of 2000, however, the National Marine Fisheries Service withdrew its BiOp because of concerns about the project's impact on salmon and the Corps' ability to achieve the restoration goals required by the agency.
The National Marine Fisheries Service (NMFS) Biological Opinion contained few protections for the threatened or endangered salmon stocks of the Lower Columbia River. The agency called for unspecified studies and post-project habitat restoration projects but did not require them, and concluded that the project would not put threatened and endangered species' survival in jeopardy. The BiOp encouraged an accelerated restoration of 5,000 acres of estuary habitat and studies to evaluate impacts of the project on habitat and estuary species, but did not require that restoration take place or even that funding be secured prior to construction. This met the desires of the Corps which sought to keep separate estuary restoration activities and the channel deepening project in order to prevent delays in the deepening and to preclude the cost of restoration as part of the deepening project. As a result of this inadequate BiOp, NWEA sued NMFS in February, 2000. The Ports intervened in the lawsuit and both the Ports and NMFS asked the court to dismiss the case. Judge Barbara Rothstein ruled in NWEA's favor. Judge Rothstein's ruling...
In a letter to the Corps on August 25, 2000, NMFS
withdrew its biological opinion. The letter explained NMFS' on-going
disagreement with the Corps about specific details of the studies and
uncertainty that the biological opinion's conservation measures would
adequately offset the impacts of the project, in light of new information
about the estuary. For example, NMFS noted that its Northwest Fisheries
Science Center is poised to release a report about the effect of the estuary
floor's configuration on the greater ecological conditions of the estuary,
information that will help NMFS evaluate the impact of the project's extensive
and permanent alterations to the estuary floor. It also pointed out that
new information is imminent on the impacts of sub-lethal exposure to toxic
contaminants on migrating salmon. Finally, NMFS expressed concern with
the Corps' ability to carry out the habitat restoration that was identified
in the Biological Opinion.
The U.S. Fish and Wildlife Service (USF&WS) Biological Opinion addressed bald eagles, Columbian white-tailed deer, and peregrine falcons. As with NMFS, the USF&WS BiOp only reviewed the impacts of the Columbia River portion of the project, omitting the Willamette portion. The agency concluded that the project would not cause jeopardy to the species but expressed concerns about harassment of bald eagle nesting pairs and the project's contribution to the accumulation of toxic contaminants in fish and wildlife along the river. The USF&WS pointed out that although the samples tested clean and safe according to the Corps' screening levels, the Service has never engaged in a formal review of the Corps' screening levels for their effects on listed species and therefore has not made a determination whether the Corps' levels could harm endangered species.
Because the Columbia River is an interstate waterbody, both Oregon and Washington are required to issue various permits and evaluations pursuant to the federal Coastal Zone Management Act (CZMA) and Clean Water Act (CWA). Additional state laws are administered by local governments.
The federal Coastal Zone Management Act (CZMA) provides states with unique authority to review various federal actions in or affecting the states' coastal zone for consistency with their Coastal Management Programs. In early December, Oregon's reviewing agency, the Department of Land Conservation and Development (DLCD), found that the project is inconsistent with enforceable policies of the Oregon Coastal Management Program (OCMP) regarding in-water disposal, timing of construction activities, past maintenance operations at Welch Island and Miller Sands, and absence of estuarine mitigation plans. As a result, DLCD disagreed with Corps' consistency determination in the Final EIS. The Corps has not yet responded to DLCD's concerns. The Washington Department of Ecology (DOE) began its CZMA review process in the spring of 2000 and deemed the project inconsistent with state shoreland management policy later that year.
Under the Clean Water Act, state agencies have the authority to ensure that federal projects do not violate state water quality regulations pursuant to section 401 of the Act. Each state has one year in which to act; after a year, the legal authority expires and the federal agency can act as it pleases. In Oregon, the Department of Environmental Quality (DEQ) is charged with reviewing projects and issuing these 401 water quality certifications. In light of NMFS' withdrawal of support for the project, NWEA has asked that Oregon request an extension of time in which to finalize its 401 certification. In late September, DEQ denied the Corps' application for water quality certification.
Washington's Department of Ecology (DOE) delayed release of its Water Quality Certification decision after the National Marine Fisheries Service withdrew its Biological Opinion. It, too, concluded that the project did not meet state standards for water quality protection.
NWEA has provided extensive comments to the states concerning the project's compliance with the Clean Water Act. In its comments, NWEA explains how the project would violate a state law that prohibits approval of activities that will contribute new pollutant loads into waters that already violate state water quality standards, such as the Columbia River.
In both Oregon and Washington, county governments uphold state shoreline management laws that must be met by the channel deepening project. Seven counties border the navigation channel: Multnomah, Columbia, and Clatsop counties in Oregon; Clark, Cowlitz, Wahkiakum, and Pacific Counties in Washington. In Oregon, county governments are responsible for deciding if the project is in compliance with the local shoreline management plan. In Washington, the Department of Ecology, with local governments' input, will determine whether the project is consistent with the local shoreline management plans.
Two agencies in Washington have expressed significant reservations about the channel deepening project. The Department of Natural Resources (DNR) is most concerned with the lack of information regarding the cumulative impacts of the project, the potential for changes in river morphology and impacts on nutrient transport and cycling, and effects on prey species like smelt and sandlance. The Washington Fish and Wildlife Department also opposes the project on the grounds that it lacks information necessary to adequately evaluate its impacts on white sturgeon, Dungeness crab, salmonids, coastal erosion, and water quality, while doubting its evaluation of the feasibility and practicality of mitigation measures and the true potential for beneficial uses of dredge material. Both agencies submitted their comments to the Corps about these issues.
Oregon's Department of Fish and Wildlife also submitted comments on both versions of the Environmental Impact Statement. They are also concerned that the project will harm fish and wildlife in the region.
CREST, the Columbia River Estuary Study Taskforce, is a Council of Governments which includes the local counties, cities, and port districts surrounding the Columbia River Estuary in both Oregon and Washington. CREST's current members include Clatsop, Wahkiakum, and Pacific Counties; the cities of Astoria, Warrenton, Ilwaco, and Seaside; the Port districts of Astoria, Ilwaco, and Wahkiakum (No.2); and Clatsop Soil and Water Conservation District. CREST provides a forum for its members to communicate on issues of regional importance, including development projects like the channel deepening project which will have an impact on the natural, economic, and human resources of the Estuary. CREST has remained actively involved in reviewing project documents and sharing its findings with its constituents and continues to work with counties in the estuary to review and assess the project's compliance with county shoreline management plans. CREST also submitted comments on the Corps' EIS.
The METRO Council of Governments has expressed its concerns about channel deepening to the Corps.
The Columbia River Inter-Tribal Fish Commission (CRITFC) has also voiced concerns about the project. CRITFC's comments address the project's impacts on treaty reserved resources.
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