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Columbia Channel Deepening BIOP Reversed by Mike O'Bryant Columbia Basin Bulletin - September 1, 2000

A plan to deepen the Columbia River channel from Portland to the ocean was put on hold last week when the National Marine Fisheries Service reversed its "not likely to jeopardize" biological opinion on the project in order to reopen a consultation process with the Army Corps of Engineers.

Some hope NMFS' reversal dooms the $196 million channel dredging project, while others believe the decision will, at most, delay it.

In an Aug. 25 letter to the Corps, NMFS said new research regarding both the project's hydraulic effects on shallow water in the estuary and the effects of low levels of toxins on salmon allow the agency to reopen consultation.

NMFS also doubted the Corps' ability to restore the estuary habitat once the project is completed.

"Our decision was based on a combination of things," said Brian Gorman of NMFS. "The Corps' interpretation of what it needed to do in terms of habitat restoration and monitoring was not the same as ours. Also, we're completing a new study that looks at the effects of bottom configuration and it hints that there may be some harm in that. Then there is the plain fact that we're being sued and we had to take that into consideration."

The bottom line, he said, was that NMFS could no longer guarantee that the project would not jeopardize salmon.

"The plain fact is that we would never sign off on junk or on an opinion if it was a legal liability," Gorman said of the BiOp. "But, it turns out the confidence we had in this BiOp eroded during the year. That's why there are provisions in the law to reopen consultations."

He could not predict what the outcome of a new BiOp would be, but said it is not a foregone conclusion that it will be a no jeopardy opinion. He speculated the new BiOp would not be issued until 2001, which could delay the project. The Corps agrees on that point.

"This will probably delay the project," said Laura Hicks, the Corps' manager for the project. She said the Corps had planned to begin construction by December 2001, but can't go ahead without a biological opinion. "When these two other pieces of information came to light, by statute we had to go back and evaluate that information."

Hicks said the Corps had not received the new information from NMFS, but it was trying to set a meeting with the agency this week or next week to "restart discussions."

The Corps and NMFS had been consulting on how to carry out stipulations in the BiOp, but were unable to come to an agreement on how to proceed on either studies or improvements in the estuary. NMFS cited this failure to agree as one reason for rescinding its original BiOp.

Hicks said NMFS had expected the Corps to begin habitat restoration in the estuary and to begin monitoring and additional data collection activities within six months of the Corps' signing a record of decision (ROD) on the project. While NMFS may have thought the clock would start when the Corps submitted its report to Congress Dec. 31, 1999, Hicks said the Corps still has not signed the ROD and cannot until all pieces of information are included. Those pieces are 401 water quality and Coastal Zone Management certification from Washington and Oregon. Even if those were done, before the Corps can begin any of the studies or habitat improvement projects, it still must get congressional funding, something Hicks said can be very slow.

Environmental groups are pointing at the lack of agreement between the two agencies as proof that the original BiOp was flawed.

"The fact that the Corps and NMFS could not agree on what the biological opinion meant is proof that our lawsuit was right on target," said Nina Bell, executive director of Northwest Environmental Advocates. "More important, it's proof that the channel deepening project is ill conceived and bad for fish."

The Earthjustice Legal Defense Fund filed a complaint against NMFS in U.S. District Court in mid-February on behalf of Northwest Environmental Advocates, American Rivers, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations and the Institute for Fisheries Research.

The lawsuit said the agency's biological opinion lacked scientific foundation and would harm young salmon traveling through the river's estuary. It alleged the process had more to do with meeting the Corps' schedule to send its dredging report to Congress than with meeting NMFS' biological responsibilities and asked the court to order NMFS to withdraw the BiOp and prepare a new opinion that meets Endangered Species Act rules. A recent attempt by the U.S. Department of Justice to throw out the suit because the Corps had yet to sign a record of decision on the project was denied (see Aug. 11, 2000 CBB).

In one of several pile-on moves this week by environmentalists, the Earthjustice Legal Defense Fund sent a letter to the Corps asking that it retract its report to Congress because the report concludes that the conditions for congressional approval have been met, which they say is now false.

"Without the biological opinion in place, the foundation for the statutorily required conclusions in your Report to Congress is now absent," wrote Todd True of the Legal Defense Fund.

In addition this week, Northwest Environmental Advocates and American Rivers sent a letter to the Oregon Department of Environmental Quality insisting that the agency and the Corps seek an extension on the amount of time allowed to complete the 401 water quality certification. Clean Water Act rules call for completing the certification process in a reasonable period of time not to exceed one year, said Russell Harding of DEQ.

Harding, who is working on 401 water quality certification of the project for DEQ, said he was surprised by NMFS' reversal and will have to meet with the agency before determining what to do next.

"Our deadline was Oct. 13 and we could have been done with the certification before that," Harding said. "But this is a legal issue and we've forwarded it to the state Attorney General for a ruling."

He added that there is nothing in the Clean Water Act that allows for such an extension. He declined to comment on whether the state's certification would include mitigation measures in order to meet water quality laws.

Northwest Environmental Advocates have also approached the Northwest Power Planning Council, which is currently reviewing the impacts of dams on the estuary and also how the condition in the estuary affects salmon recovery efforts.

"While we are pleased the Council is taking some late-found interest in the estuary, we are very concerned this effort...will have little or no value," Bell wrote. "To the extent that the Council merely reiterates the findings of other agencies it will make no contribution to the extremely complex issues surrounding the impacts of the degraded estuary to Columbia River Basin salmon and steelhead."

Saying the Council has a long history of ignoring the estuary, as well as dredging projects, she also expressed her concern that it would not address the channel deepening project, which is a "major new affront planned for this ecosystem...."

Also caught by surprise were the project sponsors, which include the ports of Portland and St. Helens in Oregon, and Vancouver, Kalama and Longview in Washington.

"We won't have a good estimate of the impact of this decision on the project until the Corps and NMFS have met," said Allan Willis of the Port of Portland. "My understanding is that the first thing they will talk about is the scope of work and the timeframe for the new BiOp.

"But this doesn't change the ports' basic intent to meet both the economic needs of the region and the needs of fisheries," he added. "We support this consultation and just hope the next product will be one that NMFS won't have to withdraw." He said he's hopeful it is concluded in time to keep the project on schedule.

He added that the ports had lobbied Congress for an additional $4 million appropriation to begin ecosystem work in 2001. "We may have to withdraw that depending on the results of talks with NMFS," Willis said.

Public review of the project began in November 1998 when the Corps released an initial proposal for comment. Along with five lower Columbia River ports (the Port of Astoria has taken a stand against channel deepening), the Corps proposed to deepen the lower 105 miles of the Columbia River shipping channel between Portland and Astoria, Ore., from 40 feet to 43 feet, something the sponsors and the Corps says would accommodate deeper draft ships and provide $34.4 million a year in economic benefits to the region.

The project is estimated to cost $188 million, but the Office of Management and Budget inflated the amount to $196 million to account for unforeseen costs. That amount, however, includes deepening five miles of the Willamette River in the Portland Harbor. According to Hicks, the Willamette section of the project is on hold until a plan for cleaning the harbor of toxic sediments is completed. That section of the river has been proposed by the Environmental Protection Agency for SuperFund listing.

Without Willamette River dredging, the project cost is $155 million, according to Willis. Congress will pay 65 percent of that, while the states of Oregon and Washington will pony up 35 percent. Willis said the Oregon legislature has already allocated $27.7 million to the project and Washington has allocated $10 million, but may add $17.7 million this year.

NMFS was required by the Endangered Species Act to review the project and provide a biological opinion on its impact to endangered salmon. The BiOp had to be included in the Corps' package that was sent to Washington, D.C. before Dec. 31, 1999, in order to obtain congressional appropriation for the $196 million project. If the Corps hadn't delivered the package on time, it could have lost the authorization to do the project it had received from Congress in April 1999. It needed the BiOp from NMFS by Dec. 17, 1999, in order to complete and send its report to Congress by the end of 1999.

NMFS delivered the not likely to jeopardize BiOp on Dec. 16, even though an internal letter from the agency's Science Center said the project was yet one more action that degrades the river system. However, to get the favorable opinion that allowed the dredging project to move forward on time, the Corps had to amend its environmental assessment and commit to restoring more than 5,000 acres of estuary wetlands over the next 10 years, monitor the project's effects on endangered salmon, modify estuary flood gates and open additional areas up to spawning.

Specifically, by 2005, the Corps was required to restore 1,500 acres of wetlands and shallow-water habitat in the lower Columbia River estuary, according to Hicks. By 2010 it was to have restored 5,000 acres in total. Prior to the BiOp's completion, the Corps' proposal included 250 restored acres. Hicks said none of the restoration work had been funded by Congress and that funding for it was completely separate from the channel deepening project.

Depending on how the renewed consultation goes and the timeline NMFS sets for the new BiOp, the Corps may have to start all over again, first seeking congressional authorization before going back in with a new report to get the appropriation, according to Hicks.

In the mean time, NMFS laid out its expectations for the reinitiated consultation in its letter to the Corps. Those include:

• a thorough assessment of the implications of the new information;
• an agreement on the details of studies and monitoring, and a schedule for the work;
• clarifying NMFS' and the Corps' expectations for completing the restoration work;
• refining of the conservation measures to be included in the BiOp to protect listed species.

NMFS said it will not reissue a new BiOp for the project until these are completed.

Link Information:
Army Corps of Engineers, Portland District: http://www.nwp.usace.army.mil
Northwest Region National Marine Fisheries Service: http://www.nwr.noaa.gov
NMFS letter to Corps: http://www.nwr.noaa.gov/1habweb/osb99-0270-RI.pdf