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Will Lower Snake Dredging Harm Lamprey? In Court Filings Feds, Ports Say Such Claims ‘Speculative’
Posted on Friday, December 19, 2014 (PST)

Tribal and conservation groups’ “speculative” claims of potential harm to Pacific lamprey do not outweigh the need to ensure, via dredging, safe passage for commercial vessels, and their operators, that ply the lower Snake River, according to court documents filed this week by the federal government and shipping interests.


The filings come in response to filings in late November with the U.S. District Court for the District of Western Washington by six Northwest fishing and conservation groups and the Nez Perce Tribe. The plaintiffs seek court action to stop a planned $6.7 million Snake River navigation channel dredging project that was scheduled to begin Dec. 15 or soon thereafter.


The court documents – a complaint filed Nov. 24 and a preliminary injunction request filed two days later – describe as illegal U.S. Army Corps of Engineers decisions to issue a dredging contract with a winter work window from Dec. 15-Feb. 28 and a Corps plan outlining its long-term strategy for managing sediment buildup in the lower Snake River that clogs the channel and impedes commercial navigation, and in some cases makes it unsafe.


“The agency’s narrow focus on dredging leaves plaintiffs no choice but to once again turn to this court to require the Corps to comply with NEPA and the Clean Water Act (“CWA”) before it takes any action,” according to the Nov. 26 request for a preliminary injunction filed for Idaho Rivers United, Pacific Federation of Fishermen’s Associations, Institute of Fisheries Resources, Washington Wildlife Federation, Sierra Club and Friends of the Clearwater and the Nez Perce Tribe.


The PI motion alleges that the Corps failed to take the legally required “hard look” at potential impact of dredging on Pacific lamprey, who spawn in the river and whose young rear in river soils.


“The 2014-2015 dredging project will likely result in irreparable harm to Pacific lamprey. Pacific lamprey, or Heesu in the Nez Perce language, are a culturally significant, treaty-reserved resource that have been integral to the spiritual, physical, and economic health of the tribe since time immemorial,” the Nov. 26 preliminary injunction request says. Legal precedent requires that parties seeking a preliminary injunction to stop an action must prove irreparable harm would otherwise result.


The Nez Perce Tribe has initiated Pacific lamprey conservation/restoration as a result of what the plaintiffs say are “severe declines in lamprey abundance.”


The Inland Port and Navigation Group and the Snake River Irrigators Association have intervened in the proceedings in support of the Corps decisions, and in opposition to the request for a preliminary injunction.


Federal attorneys, in a response filed Monday, say that “Plaintiffs present only a speculative harm to Pacific lamprey and fail to raise even a serious question going to the merits of their claims.


“Granting the motion, by contrast, would leave the channel at dimensions other than those specified by Congress and continue to present a harm to navigational safety,” the federal response says.


The federal responses says that a legal declaration crafted by Nez Perce Tribe fishery biologist Dave Statler “opines that there is ‘a high likelihood to harm or kill individual lamprey through dislodgement and downstream movement of juvenile lamprey caused by removal of dredge material or placement of dredge spoils in areas where juvenile lamprey are present; and through imbedding or smothering in dredge material removal or placement.’”


“The problem is that none of the data Mr. Statler relies upon even facially support his conclusion,” the federal response says. “The planned dredging is to occur at River Mile 9.5 (Ice Harbor Dam) and upstream from River Mile 138 (the confluence [with the Clearwater River]). But Mr. Statler’s data include no lamprey counts downstream of River Mile 76 (66 miles from Ice Harbor Dam) or upstream of River Mile 134 (four miles from the confluence).The data do not show any lamprey to be present where the Corps will actually be dredging.”


“Even if the data reflected a local lamprey presence, harm to any individual lamprey -- a species that is not listed as threatened or endangered under the Endangered Species Act -- would not justify a preliminary injunction. Plaintiffs present no evidence that the species is at risk; to the contrary, adult lamprey counts have been increasing.”


The document filed for the Corps also says the complaint and preliminary injunction motion wrongly accuse the federal agency of ignoring alternatives to dredging.


“The Corps’ purpose and need for the Current Immediate Need Action meets that reasonableness standard. Sediment accumulation is currently impairing navigation at the downstream approach to Ice Harbor Dam’s lock and the confluence of the Snake and Clearwater rivers.” The Corps is obliged by congressional mandate to maintain at desired depths and widths the navigation channel created to facilitate commercial barge and ship traffic up the Columbia and Snake rivers from the Pacific Ocean to the Idaho-Washington border at Lewiston and Clarkston.


“With its purpose and need established, the Corps turned to its Programmatic Sediment Management Plan to identify reasonable alternatives for the Current Immediate Need Action. The plan identifies two management options when an immediate need action is triggered for navigation. The first is changes in reservoir operations. But those measures are only temporary – sediment continues to accumulate and the Corps can only raise the reservoir so high given design and structural limitations.


“Thus, the second option for a navigational immediate need action is to remove the impairing sediment,” the federal filing says. “Plaintiffs argue that the range of alternatives is unreasonable because it includes only those two possibilities.”


The federal response cited a prior U.S. District Court ruling that it said supported the Corps’ decision. “In that context, Judge Lasnik rejected the same alternatives arguments that Plaintiffs bring here. ‘So long as “all reasonable alternatives” have been considered and an appropriate explanation is provided as to why an alternative was eliminated, the regulatory requirement is satisfied,’ the Lasnik decision said.


“The EIS includes thirty-one pages of discussion on the practicality and effectiveness of various management measures. Plaintiffs have not presented a serious question going to their alternatives claim,” the federal document says.


The Inland Ports and Navigation Group, in a Dec. 15, also faults the preliminary injunction claims.


“The 14-foot navigation channel is critically in need of maintenance dredging to clear hazards caused by sediment buildup. In recent years, barges, tugs and cruise vessels have struck unseen rock formations, sandbars and other barriers caused by sediment buildup as even the most seasoned pilots are unable to see the uncharted hazards that lie in their path. Sediment buildup (also known as shoaling) has caused these vessels to sustain physical damage, has imposed significant economic costs, has left crew members stranded and has prevented cruise vessels from reaching their intended destination,” the IPNG’s brief says.


“Although plaintiffs – including the Nez Perce Tribe – expressly consented to this exact same maintenance dredging in 2005-2006, and have pointed to no harm caused by that prior maintenance, plaintiffs now ask the Court to enjoin the exact same maintenance activity in 2014-2015 because, they claim, lamprey might be present in the work area.


“Plaintiffs are not entitled to this extraordinary relief for any number of reasons,” the IPNG’s brief says.


Any plaintiff replies to the federal and IPNG filing were scheduled to be filed by the end of the day today, Dec. 19. The court will allow the plaintiffs to file for a temporary restraining order in the event the dredging start date is prior to a court ruling. That would potentially provide the fishing and conservation groups, and the Nez Perce Tribe, with the opportunity to try to convince the court to stall the dredging.


Oral arguments regarding the preliminary injunction request is now scheduled in Seattle on Jan. 2.


On Dec 12, the Corps issued a notice to proceed to its dredging contractor. The Corps says the contractor will need approximately 30 days to mobilize for the project, and dredging is anticipated to begin on about Jan. 12. The timing for the dredging is driven by an in-water work window of Dec. 15 to March 1, when salmonids are less likely to be present. Salmon and steelhead, as well as lamprey, migrate up and down the river system, and spawn and rear in the Columbia and Snake and their tributaries.


Also see:


-- CBB, Dec. 5, 2014, “Groups File To Halt Lower Snake Dredging; Inland Ports Counter, ‘Risk Serious Accident Could Occur' ”


-- CBB, Nov. 21, 2014, “Long-Term Sediment Management Plan For Lower Snake River Approved; Maintenance Dredging Set”


-- CBB, April 8, 2011, “Lack Of Dredging Behind Lower Granite Forces Balancing Act For Fish, Navigation, Flood Control,”


-- CBB, Jan. 25, 2013, “Information Meeting In Lewiston Highlights Views On Draft Lower Snake Sediment Management Plan”


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