By Eric Barker, Lewiston Morning Tribune

Saturday, December 27, 2014

The fate of planned dredging on the lower Snake and Clearwater rivers this winter could hinge on its potential to harm Pacific lamprey, whether the $6.7 million project is economically justifiable and whether other options might be available.

The Nez Perce Tribe and a coalition of environmental groups will square off against the U.S. Army Corps of Engineers and supporters of commercial navigation in a Seattle courtroom Jan. 5 in a battle over the plan to remove about 400,000 cubic yards of sediment from the navigation channel near Lewiston.

The tribe and environmental groups have sued to stop the work and are asking District Court Judge James Robart to delay dredging until the case runs its course. The corps and its supporters want dredging to begin Jan. 12.

In order to win an injunction, the plaintiffs must show they are likely to win the overall case, likely to be irreparably harmed if the action isn't stopped, that balance of equities tips in their favor and an injunction would be in the public interest. While final arguments will be made in front of Robart, both sides have filed motions laying out their case.

The tribe and environmental groups say dredging will harm Pacific lamprey, an anadromous eel-like fish important to tribal members as a food source. Lamprey returns to the lower Snake River have plunged over the past few decades. The tribe is attempting to boost those numbers through a recovery program and say dredging could harm juvenile lampreys rearing in the work area.

In its response, the corps argued that it considered lamprey while developing its $16 million Programmatic Sediment Management Plan and surveyed parts of the dredging area and found no lamprey present. Thus they conclude the plaintiffs are unable to show harm.

"At most, there is a possibility of harm, and that possibility exists only if lamprey are present in the work area - a conclusion not supported by facts."

The tribe and environmental groups countered that the corps' study was brief, did not include the lower Clearwater River and failed to acknowledge the imperiled nature of lamprey.

The plaintiffs also contend the corps failed to consider a broad range of alternatives to dredging while it developed its long-term plan to manage sediment accumulation in the lower Snake River. In its plan, the agency looked at a number of tools that it might use to manage sediment. But corps officials say dredging is the only way to deal with sediment already clogging the navigation channel. The agency noted the channel, authorized by Congress at a depth of 14 feet, is as shallow as 7 feet in some places.

The plaintiffs contend the corps' own documentation shows that other methods such as seasonal drawdowns might clear the sediment and fault the agency for failing to do site-specific analysis to determine the effectiveness of alternatives to dredging.

"While dredging may be the corps's preferred alterative, it is clearly not the only alternative. The corps' failure to consider other measures - alone or in combination - as alternatives on a site-specific level violates (the National Environmental Policy Act)."

Lastly, the groups claim the corps skimped on economic analysis of the project and put forth misleading economic justification for the project by underestimating its costs and overestimating its benefits.

The corps contends in its legal filings that a lengthy cost-benefit analysis is not required because the navigation channel was authorized by Congress. The agency also argues that the transportation system is being used and barging offers a savings over other methods of transportation.

"The continued use, and the transportation savings realized when materials are shipped by barge, warrant continued maintenance."

In response, the plaintiffs faulted the corps for relying on economic data from a 12-year-old study and say the agency failed to acknowledge that much has changed in that time. Their brief says the agency's economic look at the project is "so full of holes that it provides no support for its conclusion that continued maintenance is worth the costs."

If Robart rules in favor of the corps, dredging would start as soon as Jan. 12. That is nearly a full month behind the normal start of dredging activities. To minimize the potential harm to salmon and steelhead, dredging normally happens between Dec. 15 and March 1.

Because of a contract dispute, the Dec. 15 start date was missed. Corps officials have not said if the full range of dredging can be accomplished in the shortened time frame, or how the agency and its contractor might respond to make up for lost time.