A coalition of fishing and conservation groups is seeking to expand litigation that challenges the federal government's salmon protection plan with charges that the Columbia/Snake river hydro system is being operated in violation of the Clean Water Act.
The groups, represented by Earthjustice, say that the dams are being operated without state water quality certifications and that makes their Endangered Species Act operational "permit" illegal. The system's dam operations take place in Idaho, Montana, Oregon and Washington.
Earthjustice on Wednesday filed a request in Portland's U.S. District Court for permission to file a "Fifth Supplemental Complaint for Declaratory and Injunction Relief" that says NOAA Fisheries Service's new salmon strategy is scientifically and legally flawed and fails to comply with the Endangered Species Act.
NOAA's 2008 Federal Columbia River Power System biological opinion, released May 5, says that the federal hydro system jeopardizes listed salmon and steelhead but that jeopardy can be avoided if a detailed "reasonable and prudent alternative" is implemented.
That RPA includes operational measures and structural changes at the dams that it says will improve fish survival. It also includes off-site work, such as habitat restoration, that is expected to mitigate for fish mortality incurred during their migration up and down the Columbia/Snake hydro system.
The coalition, led by the National Wildlife Federation, on July 14 filed a fourth supplemental complaint against NOAA claiming the 2008 BiOp fell short of ESA legal requirements.
That complaint asks the court to vacate and set aside the 2008 FCRPS BiOp and the accompanying incidental take statement and permits, and require NOAA "to prepare a biological opinion for the FCRPS, its operations, and any related actions that complies with the requirements of the ESA…."
The new complaint, if allowed by Judge James A. Redden, would replace the fourth complaint. It would also add federal action agencies -- U.S. Army Corps of Engineers and Bureau of Reclamation -- as defendants in the lawsuit. The Corps and Bureau operate the dams.
The fifth complaint says the action agencies are violating the ESA by implementing the new BiOp and its incidental take statement, which allows a certain amount of fish mortality.
That "take" "occurs in a number of ways, including mortality and injury to adults and juveniles caused by turbine passage, bypass and collection systems, delayed migration and increased predation associated with reservoir operations and an altered hydrograph, loss of spawning and rearing habitat and impaired water quality," the fifth complaint says.
"In the absence of a valid ITS or exemption under the Act, this take is prohibited," the fifth complaint says. The complaint follows a 60-day notice of intent to sue.
"The Action Agencies' reliance on the 2008 FCRPS BiOp, which they knew or should have known is invalid, fails to meet their independent and continuing legal duty to comply with the substantive requirements of ESA section 7(a)(2) to avoid jeopardy and adverse modification of critical habitat."
The fifth complaint says all three agencies are in violation of the CWA. Section 401 of the CWA says that "[a]ny applicant for a Federal license or permit to conduct any activity … which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates…." The provision is intended to assure federal activities abide by state water quality regulations.
The new complaint cites legal precedent backing the assertion that dam operations are indeed discharges.
"The Corps and BOR have violated section 401 of the CWA because they have not secured the required state certifications for the continued maintenance and operation of the fourteen major hydroelectric dams of the Federal Columbia River Power System ("FCRPS") and the numerous dams involved in nine BOR-operated irrigation projects (collectively the "Columbia River Projects") prior to receiving a federal permit from NOAA Fisheries."
The fifth complaint says NOAA's BiOp ITS fits within the CWA's description of a "permit." The CWA says that "[n]o license or permit shall be granted until the [required] certification . . . has been obtained" by the permitting agency or waived by the state.
"NOAA Fisheries is in violation of section 401 of the CWA because it issued the ITS to the FCRPS Action Agencies allowing them to continue operating, maintaining, and hence discharging water from the Columbia River projects before those agencies obtained the certification required by Section 401 and did not obtain the certification itself," the fifth complaint says.