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Lawsuit Challenges Corps' EIS, ROD on Channel Deepening by Mike O'Bryant Columbia Basin Bulletin - June 18, 2004

Northwest Environmental Advocates amended this week its original lawsuit that challenges NOAA Fisheries' biological opinions on the U.S. Army Corps of Engineer's dredging operations in the lower Columbia River and at the river's mouth.

The amended suit enjoins the Corps into the lawsuit, challenging its environmental processes under the National Environmental Policy Act and particularly challenges the Corps' Columbia River channel improvement project.

The amended complaint, filed with U.S. District Court Judge John Coughenour in Seattle, challenges the Corps' Environmental Impact Statement and Record of Decision for the agency's Columbia River channel improvement project, completed in January. It said that NEPA requires that the Corps looks at the past, present and future impacts of actions, and that the Corps failed to analyze all the environmental impacts of the project and so has misrepresented the economic costs and benefits of the $150 million project. The channel improvement project proposes to deepen the lower 103 miles of the Columbia River navigation channel from 40 feet to 43 feet.

"This is not entirely surprising," said Matt Rabe of the Corps. "We expected there would likely be some litigation on this project. While the suit claims we didn't follow the NEPA process, we fully believe the project is consistent with NEPA." This is the only court challenge to the project since the Corps finalized the plan in January.

He added that the project also is consistent with the Clean Water Act and the Coastal Zone Management Act (Oregon and Washington gave their approvals to both last year), as well as the Ocean Dumping Act.

Oregon and Washington ports have said that deepening the channel from Portland to Astoria is needed to stay competitive with other West Coast ports. However, NWEA sees the project as one that further degrades the Columbia River estuary after years of dredging and erosion. In late March, NWEA challenged NOAA Fisheries biological opinions for both the channel deepening project (released in 2002) and for Corps operation and maintenance dredging operations in the lower river (released in 1999), the mouth of the Columbia River and the lower Willamette River.

Nina Bell, executive director of NWEA, said that the Oregon and Washington coastlines are eroding, as are the jetties at the mouth of the Columbia River, and that is due to both the presence of the jetties and dredging actions of the Corps. She contends that the NOAA and the Corps have not considered the cumulative effects of the dredging operations, nor has the Corps included the cost of fixing the problem in its NEPA documentation for the channel deepening project. She said that fixing the problem could cost "hundreds of millions of dollars,"

"This parallels why we targeted the BiOps in the first lawsuit," she said. "Together, this demonstrates the agencies aren't looking at the big picture. The channel deepening EIS hasn't looked at what's already happened."

Earthjustice filed the amended complaint on behalf of NWEA. This is NWEA's second run at the Columbia River channel deepening project. It also sued NOAA Fisheries in 2000 to stop the project. That lawsuit, although not finalized in court, was a factor in the federal fishery agency's decision to withdraw its BiOp for the initial project, which threw the process into 1.5 years of further scientific study, after which the U.S. Army Corps of Engineers submitted a new project proposal in 2002.

In this new challenge, Bell said the Corps had failed to include the cost of repairing 20 percent of the jetties, estimated at $140 to $260 million. The Corps has asked this year to include $6.2 million for jetty repairs in the President's 2005 fiscal year budget, but the Corps really needs $14.1 million to make some immediate repairs, Bell said, not to mention the entire cost of rebuilding the jetties.

"By omitting the costs of repairing the jetties, the Corps misrepresents the costs of deepening the Columbia River," Bell said. "If the front door to the river is shut closed, it doesn't matter how deep the river is, there won't be any deep draft shipping."

The Corps agrees the jetties are in need of repair after suffering significant damage caused by ocean currents, tidal actions and Pacific storms during the past century and that it does have a two-phase program to do that. Rabe said the Corps will do some immediate repairs over the next two years and confirmed that the cost will be about $14 million. Part of that is budgeted in FY 2005 and the remainder will be budgeted in FY 2006.

"There is also some bolstering on both the north and south jetties that we are looking into," Rabe said. "When we repair the jetties, it will be all of them, not just the 20 percent and it won't cost anything near the numbers" cited by Bell. "But, until we decide what the exact fixes will be, we won't have an estimate."

In addition, NWEA accuses the Corps of not revealing the costs of repairing the beach erosion in Oregon and Washington, which she said is due to both the jetties and to a 1998 change in dredging philosophy that disposes of more spoils in ocean areas rather than in the river. The erosion, NWEA said, has cost an estimated $70 to $100 million over the past 10 years.

"Federal law requires the Corps to give the public and Congress sufficient information to make good decisions for the federal treasury and the environment, Bell said. "The Corps' hiding the bill for this project and its failure to admit that channel deepening will actually make the problem worse, leaves us no other recourse but the courts."

The change in philosophy is apparent in the Corps' Dredge Material Management Plan supplemental EIS, completed in 1998, she said. That plan supplemented the 1975 EIS, which justified deepening the Columbia River shipping channel from 30 feet to 40 feet. The 1998 EIS signaled a change towards taking spoils out of the Columbia River system and estuary and, instead, dumping those spoils in ocean areas and depriving the river of the sediments.

The Corps acknowledged the change. "It's long been a practice when maintaining the mouth of the Columbia River to dispose in the ocean environment," Rabe said. "Long ago, we placed the spoils in near shore areas, but now we do that in selected ocean disposal sites.

"We do have an obligation to maintain the navigation channel and we have to put the spoils someplace," he continued. "Our choice is to use the least cost option. It's not fiscally responsible to put it miles away."

Couple the dredging operations, which remove sand from the littoral system in the river, with the impact of the Columbia River dams, and the amount of sediment in the system each year has dropped from 12 million cubic yards to 2 mcy, Bell claimed.

"We want them (NOAA) to withdraw these documents because they are not consistent with federal law," Bell said. The documents include the BiOp for the channel deepening operation and the maintenance dredging operations for the river channel and for the mouth of the Columbia River.

"We also want the Corps to recognize that it has a huge environmental problem with what it is doing now," she said. "We want them to withdraw the deepening documents and deal with the problems they have. But, even if the deepening project goes away, there are huge problems with what is happening to salmon and what's happening to the coastline that needs remedy."

Even without the channel deepening project, the Corps would work to ensure the jetties remain functional, Rabe said. "Jetty repair and rehab would be done." The Corps will respond to the amended complaint by July 1.

While NWEA is challenging the channel deepening project, Northwest labor leaders this week petitioned President George W. Bush to increase from $3 million to $15 million the amount dedicated to the project in his FY 2005 budget.

"As labor leaders, we know that this project is critical to jobs in the Northwest," 18 labor leaders said in a June 11, 2004 letter to the President. "Over 40,000 Northwest jobs – averaging $46,000 in annual wages -- depend on seaport activity. An additional 59,000 jobs are positively influenced by this maritime commerce, totaling $1.8 billion in personal income generated each year."

The letter also pointed out that federal and state environmental approvals for the project are in place and "it's time to move forward with this economically and environmentally responsible project."

The channel improvement EIS and ROD are still under review by the Office of Management and Budget. The review must be completed before OMB can recommend the full $15 million this year. The labor leaders urged the President to expedite the OMB review.

Related Sites:
Northwest Environmental Advocates: www.northwestenvironmentaladvocates.org
Earthjustice/Seattle: www.earthjustice.org/regional/seattle/index.html?ID=&show=Press%20Releases
NOAA Fisheries Northwest Regional Office: www.nwr.noaa.gov