Oregon
Water
Resources
Congress
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March 25, 1999
Re: Notice of Intent to Sue for Violations of Section 7 of the Endangered Species Act. Dear Sirs: On behalf of WaterWatch of Oregon, Trout Unlimited, and the Northwest Environmental Defense Center (NEDC), this is notice that you must take prompt action to correct ongoing violations of section 7 of the Endangered Species Act (ESA), 16 U.S.C. § 153 6, with respect to the listed Snake River salmon and mid-Columbia River steelhead. INTRODUCTION Boeing Agri-Industrial Co. (Boeing) leases from the State of Oregon approximately 93,800 acres of land located along the Columbia River, west of the U.S. Navy's Boardman Bombing Range in Morrow County, Oregon. In 1971, the Army Corps of Engineers (Corps) issued a permit under Section 10 of the Rivers and Harbors Act of 1899 authorizing construction and maintenance of a pump station in the Willow Creek arm of the John Day pool, Columbia River, to irrigate 14,500 acres of this state owned land. Permit 071-OYA-1-000484. The Fish and Wildlife Service initially took the position that an Environmental Impact Statement should be prepared for the project but later withdrew its recommendation, recommending instead that Boeing should apply for a permit modification if it planned to withdraw more than 450 cubic &a per second (cfs) at the pumping station. Letter from Fish and Wildlife Service to Corps of Engineers (August 27, 1975). In 1978, the Corps issued a permit under section 10 of the Rivers and Harbors Act of 1899 and under section 404 of the Federal Water Pollution Control Act which expanded the existing pump station and authorized irrigation of an additional 15,000 acres of land. Permit 071-OYA-20902537. In response to concerns raised by NMFS that fish might be attracted into the Willow Creek arm by the flows created by pumping, this permit was conditioned to require a study of the impacts of the pumping plant an fish life in the area. These permits are in the name of Boeing and provide for both the construction and maintenance of the pump station consistent with the permit To date, approximately 27,598.8 of the 44,420 acres allowed in the permits have been developed with an estimated peak diversion rate of 442 cfs. In addition, the Corps issued in 1995 Provisional Permit No. 93-0011 under section 404 and section 10 which allows dredging of approximately 2,000 cubic yards of silt and clay annually over a 5-year period in the Willow Creek Arm in front of the Boeing pumping stations. This dredging is needed to remove sediments from the water channel in front of the pumping facility in order to maintain a water supply to the pump station. In December of 1995, Boeing subleased a portion of undeveloped state land to Inland Land Inc. (Wand). In June of 1996 Wand filed for a Corps section 404 permit (application # 96-697) to construct an intake structure and pump station on the mainstem Columbia to serve these lands. The structure would allow for diversion of 303 cfs of water. In the application Wand stated that the pump stations in the Willow Creek Arm of the Columbia were initially considered but rejected because of "(i)nsufficient water supply," "(p)ossible impacts to resident and migratory fish" and "(e)xtensive additional engineering if the John Day Pool was '(d)rawndown. "' Corps staff also raised concerns about potential harm to fisheries and habitat and recognized that increased pumping at the Willow Creek pump station 'is not environmentally sound" because increased flow rates could compound the dredging demand. Memo to Burt Paynter from Jim Anderson (July 30, 1997). The Corps requested formal consultation on the Columbia River point of diversion with the National Marine Fisheries Service (NFMS) on this Section 404 permit application in July of 1996. In May of 1997, NMFS concluded that the water withdrawal from the Columbia River would "jeopardize the continued existence of listed Snake River salmon." See Endangered Species Act Section 7 Biological Opinion on permit application number 96-697 by the Inland , Inc., for construction of a pumping facility on the Columbia River, at iii, (May 16, 1997) (hereinafter, "Inland 1997 BiOp"). In February of 1998, Inland requested that the Corps "suspend" Inland's application and an February 19th, the Corps acknowledged that the application had been withdrawn. Inland is now taking action to achieve their diversion through existing pump stations located in the Willow Creek arm of the John Day Pool, even though NMFS concluded that this same water withdrawal, through a new pumping station, would jeopardize the Snake River salmon. Inland has delineated the perimeter of its irrigation circles and dug the trenches for the delivery system for water from the Willow Creek station in preparation of diversion of water during the 1999 irrigation season. It is our understanding that the Corps has had discussions with Inland and its attorneys about the use of the existing diversion structure to irrigate these new lands and that the Corps has advised Inland that the work can proceed without any additional approval by the Corps. It is our understanding that, at a minimum, modifications will be made to the pumps and the existing screening of the structure. The Corps has recently confirmed in writing its position on these matters, stating that Inland requires no further regulatory approval to proceed with its development. See letter from W.B. Paynter to WaterWatch, March 11, 1999. The Corps, through its issuance and oversight of section 404 and section 10 permits connected with the diversions at Willow Creek, has the authority to modify diversion. activities at that site to provide for the conservation of Snake River salmon and mid-Columbia steelhead. Section 7(a)(1) of the ESA mandates that federal agencies shall utilize their authorities in furtherance of the purposes of the ESA. 16 U.S.C. § 1536(a)(1). The Corps is violating its duty under § 7(a)(1) by allowing section 404 and section 10 permittees to increase diversions significantly over historical levels at pump stations located in the Willow Creek arm of the Columbia, River's John Day Pool. In addition, the Corps is violating its § 7(a)(1) duty by having failed to exercise its oversight authority with respect to the section 404 and 'Section 10 permits since the listing of the Snake River salmon, and the recent listing of the mid-Columbia steelhead. Finally, the Corps is in violation of § 7(a)(2) by failing to request consultation with NMFS on the permits issued by the Corps. This letter serves to inform you that unless the Corps, in furtherance of its § 7 duties, takes immediate action to exercise its oversight authority in order to provide for the conservation of listed Snake River salmon and mid-Columbia steelhead, we will file suit against the Corps and you in your official capacities as representatives of the Corps to enforce the conservation provision of 16 U.S.C. 0 1536. We intend to file this action pursuant to § 11 (g)(1)(A) of the ESA, 16 U.S.C. 1540 (g)(1)(A) and the Administrative Procedure Act, 5 U.S.C. §706. I. MEASURES TO MAINTAIN FLOWS IN THE COLUMBIA RIVER ARE CRUCIAL TO SURVIVAL OF LISTED SALMON IN THE COLUMBIA RIVER. Several species of salmon have been listed under the Federal Endangered Species Act since the issuance of the two Corps permits for the Willow Creek diversion structures. Snake River sockeye salmon were listed as endangered in 199 1. Snake River spring/summer chinook salmon and Snake River fall chinook salmon were listed as threatened in 1992 and were proposed to be reclassified as endangered in 1994, but no final rule has been published. Most recently, on March 9, 1999, NMFS listed the mid-Columbia ESU of steelhead as a threatened species under the ESA. The steelhead listing covers a considerable reach of the Columbia River, including the John Day Pool and its Willow Creek Arm where the water pumping station is located, and also covers Willow Creek itself Adequate flows in the Columbia River are crucial to the survival and recovery of the Snake River salmon and the mid-Columbia steelhead: NMFS S included water quantity among the features essential to the conservation of listed salmonids in its designations of critical habitat for Snake River Salmon in its 1995 Biological Opinion on operations of the Federal Columbia River Power System ("1995 FCRPS BiOp'). NMFS also identified specific flow objectives for the Columbia River in this document The agency termed these flow objectives the "minimum necessary to avoid high salmon mortality." 1995 FCRPS BiOp, Flow Appendix at 9 - 13. In its 1995 FCRPS Opinion, NMFS concluded that existing conditions in the Columbia River system were inadequate to meet the biological requirements of listed Snake River salmon, in part because of low streamflows in many years. The 1995 FCRPS Opinion included measures to improve instream flow conditions including specific flow targets for the mainstem Columbia River. NMFS contracted with the Bureau of Reclamation to assess the cumulative effects of water . withdrawal on streamflows in the Columbia basin. The study by the Bureau reveals that spring flow objectives set by the FCRPS Opinion for the Columbia River at McNary dam,- located immediately upstream of the John Day Pool, are only satisfied 72 % of the time and summer flow objectives at the dam are only satisfied 26% of the time. Based upon this and other supporting information, NMFS concluded in its 1997 Biological Opinion on the Inland Land section 404 permit application that "the continued increase in water depletions ... (would] jeopardize the continued existence of Snake River salmon, as well as alter critical habitat" Inland 1997 BiOp at iii. In this Opinion, NMFS determined that the Corps should condition 404 permits to ensure that water withdrawals do not result in a "net reduction in streamflow," and that withdrawals only occur at times when salmon are not migrating or when flow objectives are being met. Id. at iii. NMFS has thus put the Corps on notice that any increased diversion of water in the Columbia Basin that affects mainstem flows is likely to jeopardize the existence of Snake River salmon fisted under the ESA. Inland's proposed water withdrawal could also injure or kill mid-Columbia steelhead, a threatened species which my be present in the Columbia River at the point of diversion. In addition, threatened mid-Columbia steelhead may be present in Willow Creek above the pumping station. Willow Creek was historically a steelhead stream and in recent years there: have been reports of steelhead in Willow Creek several miles, upstream from the Columbia River, although a dam blocks upstream migration at approximately river mile 16. The proposed water withdrawals may adversely affect threatened steelhead in the Columbia River and Willow Creek, particularly if the pump intake screens fail to work properly. Two years ago, NMFS found that further degradation of existing conditions "would have a significant impact due to the amount of risk the listed Snake River salmon presently face under the environmental baseline." Inland 1997 BiOp at 8. The recent listing of additional salmon stocks in the Columbia River Basin underscores the severe threats salmonids face to their very existence, and the fact that conditions have still not improved. Accordingly, it is imperative that the Corps take immediate action to Comply with the mandates of the ESA. ii. THE CORPS HAS THE AUTHORITY THROUGH THE ISSUANCE AND OVERSIGHT OF SECTION 404 AND SECTION 10 PERMITS TO TAKE NECESSARY ACTIONS FOR THE CONSERVATION OF LISTED SALMON. The creation of "obstructions" to the navigable capacity of waterways is prohibited unless first authorized by the Corps under section 10 of the Rivers and Harbors Act of 1999. 33 U.S.C.§ 403. The Courts have liberally construed the term "obstruction" to mean any structure which limits the use of a waterway as a navigable stream. Under this Act the Corps has the authority to issue permits for the construction of diversion structures affecting the navigability of a waterway and the excavation or fill of the channel of any navigable water in the United States. Id. In addition, the Corps is vested With the authority to enforce the provisions of section 10 of the Rivers and Harbor-, Act. 33 U.S.C. §§ 406, 413. The Corps also has the authority under Section 404 of the Clean Water Act to issue permits for the discharge of dredged or fill material into navigable waters. 33 U.S.C. § 1344(a). The Corps is authorized to deny or restrict the discharge of materials into an area if it determines that the "'discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding area wildlife,. or recreational areas." 33 U.S.C. § 1344(c). The Corps also has the authority to enforce any condition or limitation set forth in section 404 permits. 33 U.S.C. § 1344(s). The Boeing Agri-Industrial Company holds three Corps permits for the existing pump station and dredging at Willow Creek. Permit 071-OYA-1-000484, issued in 1971 and amended in 1974, was issued pursuant to Section 10 of the Rivers and Harbors Act Permit 071-OYA-2.0002537, issued in 1978, and Provisional Permit 93-0011, issued in 1995, were issued pursuant to Section 10 of the Rivers and Harbors Act and Section 404 of the Federal Water Pollution Control Act These three Corps permits contain explicit language reserving to the Corps oversight powers providing for ongoing review of the permits. The oversight powers provide for modification, suspension or revocation of the permits if the Corps determines that there has been a violation of any of the terms or conditions of the permits or that such action would otherwise be in the public interest. The determination of whether modification, suspension or revocation is in the public interest is described in Permit number 071-OYA-1-000494 as involving. "A consideration of the impact that any such action or the absence of any such action may have on factors affecting the public interest. Such factors include, but are not limited to, navigation, fish and wildlife, water quality, economics, conservation aesthetics, recreation, water supply, flood damage prevention, eco systems, and, in general, the needs and welfare of the people." (p. 4) Permit 93-0011 further states that the Corps may re-evaluate its decision on the permit at any time the circumstances wan-ant. Among the circumstances cited by the Corps that could require reevaluation is the possibility that "(s]ignificant new information surfaces which this office did not consider in reaching the original public interest decision." Permit 93-0011. In addition, each of these permits contains conditions geared to protect fish life in the Columbia River system. Provisional Permit 92-0011 condition (f) requires daily testing to be conducted during dredging operations to ensure that settlable solids remain below 5 percent in all return water and requires submission of testing results to the Corps. Condition (m) provides that filling activities can be suspended or modified to the extent required to mitigate or eliminate adverse effects on fish or wildlife resources. Condition (kk) in Permit 071-OYA-2-002537 requires a study to evaluate the impact of the pumping plant an fish life and, if significant impact is demonstrated, modification or correction of the facility to eliminate the adverse impacts. Condition (hh) requires screening to meet NMFS or other fishery agency requirements. Condition (s) in permit 07 1 -OYA1 -000484 requires the permittee to "make every reasonable effort to prosecute the construction or work authorized herein in a manner so as to minimize any adverse impact of the construction or work on fish, wildlife and natural environmental values."' ' At least three of the above mentioned resource/fish protection conditions have been and continue to be violated. No study of the impact of the pumping plant on fish life has been performed as required under condition (kk) in Permit 071-OYA-2-002537. See Letter to WaterWatch from Corps (December 1, 1998) (". . . we did not pursue it and the study was not done!) Condition (f) in Provisional Permit 92-0011 which requires reporting of daily testing results to the Corps has not been met. See Letter to WaterWatch from Corps (January 14, 1999) ("We have no daily testing results on file.') In addition, existing screens on the pumping facility do not appear to meet NMFS standards, in violation of condition (hh) of Permit *071 ~OYA-2002537. The Inland Biological Opinion contains "Conservation Recommendations" which are "discretionary measures suggested to minimize or avoid adverse effects of a proposed action on listed. species, to minimize or avoid adverse modification of critical habitat, or to develop additional information." Wand 1997 BiOp at 17. NMFS' conservation recommendations were: (1) that the Corps should develop a database of all existing permits that have resulted in a water withdrawal; and (2) that the Corps should complete all necessary work to decide whether existing permits in the Columbia and Snake River Basins are candidates for consultation as ongoing actions before spring 1999. To date, the Corps has taken no action toward implementing these recommendations. Moreover, on March 11, 1999, the Army Corps responded to inquiries from WaterWatch of Oregon regarding the Corps' position on Inland's proposed diversion. See Letter of March 11, 1999, from W.B. Paynter, Chief Regulatory Branch, Army Corps of Engineers, to Karen Russell, WaterWatch. In this letter, the Corps merely explained that Inland's proposed diversion does not require a new permit from the Corps bemuse the diversion is taking place at an existing structure. The Corps did not address in any way the Corps' ongoing oversight duties with respect to the permits covering the existing structure, nor did the Corps acknowledge that it has the authority to modify or revoke Inland's permit on the existing structure based on adverse effects to fish and wildlife. These ongoing violations of permit conditions; the listing of Snake River Salmon and the mid-Columbia steelhead under the ESA since issuance of two of the three permits; the NUTS jeopardy opinion issued in connection with this very same project; the Corps' failure to carry out. NMFS' conservation recommendations; the proposal to increase diversions at the pump stations by 303 cfs; and, the fact that the permit conditions must be protective of fish life in the area, all require that these permits be revisited by the Corps. III. NMFS HAS GIVEN THE CORPS EXPLICIT NOTICE THAT ANY NEW SIGNIFICANT DIVERSION WILL JEOPARDIZE THE CONTINUED EXISTENCE OF SNAKE RIVER SALMON. In 1994, NMFS provided guidance to the Corps on when formal consultation under Section 7 of the ESA should be conducted for permits likely to result in water withdrawals that have adverse effects on listed salmon. This early guidance directed that the Corps initiate formal consultation for any new withdrawal greater than 5 cfs in the Snake River above Ice Harbor Dam and for any withdrawal greater than 25 cfs in the mainstem Columbia above Bonneville and the mainstem Snake up to Ice Harbor Dam. (See Letter to Corps from NMFS May 16, 1997). That general guidance was based upon an agreement between the Corps and NMFS that the Corps would "cooperate with NMFS in conducting a study of the cumulative effects of water withdrawals throughout the Columbia River Basin" and that the Corps had the authority to reopen existing permits. Id. In an earlier letter to the Corps, NMFS emphasized that the Corps had represented to NMFS that the Corps had "the ability to re-evaluate, suspend, or revoke a permit based on significant new information" and that "information from a cumulative effects study could constitute the type of information that would warrant reexamination of existing permits." Letter to Corps from NMFS (September 25, 1994). In the covering letter for the 1997 Biological Opinion subsequently prepared by NMFS on Inland's proposal, NMFS amended the above consultation guidelines to be followed by the Corps. NMFS recommended that the Corps "Initiate formal consultation for all pending and future requests for water diversions in the Columbia Basin affecting mainstem flows and tributaries inside critical habitats." NMFS explained that the new guidelines were warranted in light of new information provided by the Bureau of Reclamation concerning "the significant adverse effects of water development on the ability of federal agencies ... to meet flow targets identified in the 1994 1908 FCRPS biological opinion, issued on March 16, 1994." NMFS has also unequivocally stated that increases in water diversions from the Columbia River would harm listed salmon: "... the continued increase in water depletions, when added to the existing environmental baseline (which includes significant impacts to flows from water withdrawals), and taken together with likely future water depletions, would degrade the environmental baseline and jeopardize the continued existence of fisted Snake River salmon, as well as alter. critical habitat." Wand 1997 BiOp at iii. The proposal by Inland to divert up to an additional 303 cfs from existing structures covered under current section 404 and section 10 permits, rather than a new structure on the mainstem Columbia, does not change the physical and biological realities of the proposed new diversion. Whether accomplished by building a new pump station or by using existing permits, the negative impact of this significant additional diversion will jeopardize the existence of the listed salmon through a negative impact on the targeted stream flow. NMFS has not only determined that a diversion of this magnitude is not permissible under the ESA, they have also clearly communicated that determination to the Corps in the 1997 biological opinion prepared on Inland's original proposal. The Corps' inaction is in direct conflict with the ESA's mandate under § 7(a)(1) that agencies shall use their authorities in furtherance of the conservation of imperiled species. IV. THE ARMY CORPS OF ENGINEERS IS VIOLATING § 7 OF THE ESA BY FAILING TO UTILIZE ITS AUTHORITY IN FURTHERANCE OF THE ESA. Under § 7(a)(1) of the ESA, Federal agencies are directed to use their authorities to further the purposes of the Act by carrying out conservation programs for listed species. As defined under § 3 of the ESA, the term "conservation" means to use all necessary to bring any endangered or threatened species to the point at which the measures provided pursuant to the ESA are no longer necessary. 16 U.S.C. § 1532(3). The ESA requires every Federal agency to insure that any action it authorizes funds or carries out, is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat. 16 U.S.C. § 1536. In Pyramid Lake Paiute Tribe v. United States Dept of Navy, 898 F.2d 1410, 1417 (9th Cir. 1990) the Ninth Circuit found that the ESA reflects "a conscious decision by Congress to give endangered species priority over the 'primary missions' of federal agencies." Pyramid Lake, 898 F.2d at 1417 n.15 (quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 185 (1978)). In a recent opinion, the Fifth Circuit found that "§ 7(a)(1) contains a clear statutory directive (it uses the word "shall') requiring the federal agencies to consult and develop programs for the conservation of each of the endangered and threatened species listed pursuant to the, statute." Sierra Club v. Glickman 156 F.3d 606, 617 (5th Cir. 1998). The Corps has failed to comply with the ESA's requirement that it use all its authorities to further the purposes of the Act, The Corps' § 7(a)(1) duty in this cast is particularly clear. The Corps has failed to conduct any further review of the permits despite on-going violations of permit conditions. Just days ago, NMFS announced the listing of the mid-Columbia steelhead, a species found in the area subject to the Corps' permits. Combined with the unequivocal statements from NMFS that an increase in water diversions from the Columbia ]River is likely to result in jeopardy for Snake River salmon, the Corps' failure to exercise its oversight authority in response to Inland's proposed diversion is a violation of the Corps' affirmative § 7(a)(1) duty. Sierra Club, 156 F. 3d at 616 ("[Under section 7(a)(1)), each federal agency must also be required to take whatever actions are necessary to ensure the survival of each endangered and threatened species.'). In addition, the listing of Snake River salmon and the mid-Columbia steelhead since the Corps' issuance of the permits, standing alone, provides sufficient cause to trigger the Corps' § 7 (a)(1) duty to exercise its oversight authority. NMFS specifically told the Corps in 1997 that "there must be a significant improvement in the environmental conditions of the critical habitat (of the Snake River salmon] over those currently available under the environmental baseline." Inland 1997 BiOp at 8 (emphasis added). In other words, the Corps was given specific information by the expert wildlife agency, NMFS, that the activities of the Corps' permittees could not continue as they had in the past without further endangering the Snake River salmon. The Corps' on-going oversight authority, combined with the information it received from NMFS that there had to be "significant improvement" in the Snake River salmon's habitat over existing conditions to avoid further endangering the species, provides clear notice that the Corps' inaction is not fulfilling its affirmative § 7(a)(1) duty. The Corps must exercise its oversight authority to modify, suspend, or revoke the permits in order to comply with its ESA duties towards Snake River salmon and the mid-Columbia steelhead. Finally, the Corps must initiate § 7(a)(2) consultation with NMFS over the section 404 and section 10 permits at issue here. 16 U.S.C. § 1536(a)(2). Among NMFS` Conservation Recommendations to the Corps was "to decide whether existing permits in the Columbia and Snake River Basins are candidates for consultation as ongoing actions ... NMFS believes [this] is necessary to make progress toward salmon recovery." Inland 1997 BiOp at 17. NMFS' regulation governing reinitiation of formal consultation provides that "Reinitiation of formal consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal involvement or control over the action has been retained or is authorized by law and ... if a new species is listed or critical habitat designated that may be affected by the identified action." 50 C.F.R. § 402.16. Both conditions of the regulation have been met here. The Corps retains continuing oversight authority with respect to the section 404 and section 10 permits, and the permittee's actions under these permits are likely to harm Snake River salmon mid-Columbia steelhead, both listed as threatened since the issuance of the section 404 and section 10 permits. CONCLUSION The Corps' administration and oversight of section 404 and section 10 permits are subject to the § 7(a)(1) requirement that federal agencies utilize their authorities in furtherance of ESA mandates. The Corps is violating its duty under § 7(a)(1) by authorizing diversions that are significantly increased over historical levels at pump stations located in the Willow Creek Ann of the John Day Pool, Columbia River. NMFS has already alerted the Corps to the adverse impact that any such diversion would have on Snake River salmon. In addition, the listings of the Snake River salmon and mid-Columbia steelhead under the ESA, together with NMFS' notice to the Corps that habitat must improve over current conditions, means that in this case the Corps' continued failure to re-evaluate the section 404 and section 10 permits is a violation of its affirmative duty under § 7(a)(1) of the ESA. Moreover, the Corps must consult with NMFS under ESA 0 7(a)(2) on the permits, pursuant to ESA consultation regulations issued by NMFS. 71e organizations listed on this notice letter are united in their desire that immediate action be taken to restore Columbia Basin salmonid populations. The continued survival of the Snake River salmon and The steelhead are important ecologically, economically, aesthetically, and culturally to a host of different interests. Federal agencies should move as quickly as possible to explore and implement those salmon- recovery measures which will achieve the greatest possible benefits to these imperiled species. We sincerely hope that the Corps will take the necessary measures to ensure that its actions comply with the mandates of the ESA. If the agency does not take prompt measures to remedy its current violations, however, we intend to seek relief through legal action. This letter serves as the statutorily required notice of such a suit should one become necessary. Please do not hesitate to contact any of us through either the WaterWatch (503.295.4039) or Trout Unlimited (503.827.5700) offices in Portland if we can be of any further assistance in your efforts comply with the ESA.
cc: Governor John
Kitzhaber |