Northwest Environmental Advocates--Programs

EarthJustice Legal Defense Fund

Lieutenant General Joe N. Ballard
Chief of Engineers
U.S. Army Corps of Engineers
20 Massachusetts Avenue, NW
Washington, D.C. 20314

August 30, 2000

Dear General Ballard:

For the past several years, the U.S. Army Corps of Engineers ("Corps") has been evaluating a proposal to deepen the federal navigation channel on the Lower Columbia River to a dept of 43 feet. The Corps and NMFS began formal consultation under Section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2) on this proposal on October 13, 1999. On December 16, 1999, the National Marine Fisheries Service issued a Biological Opinion ("BiOp") evaluating the U.S. Army Corps of Engineers' Lower Columbia River Channel Deepening Project ("the Project").

The BiOp concluded that, despite causing significant adverse effects to an already highly degraded habitat baseline for 13 stocks of ESA-listed salmon and steelhead, the Project would not likely jeopardize the continued existence of these species or appreciably diminish the value of their critical habitat because of proposed future studies, as yet unplanned monitoring, and yet-to-be-determined or assured mitigation measures. We represent Northwest Environmental Advocates, American Rivers, Trout Unlimited, and Pacific Coast Federation of Fisherman's Associations in a lawsuit pending in U.S. District Court for the Western District of Washington challenging the validity of NMFS' December 16, 1999 BiOp.

The Water Resources Development Act requires the Corps to prepare feasibility reports for water-related resource projects. 33 U.S.C. § 2282(a). Such a report must describe, among other things, the "economic, environmental, and social benefits and detriments of the recommended plan." Id. Section 101(b)(13) of the Water Resources Development Act of 1999 authorized the Project "if a favorable report of the Chief is completed not later than December 31, 1999." 106 Pub. L. 53, 113 Stat. 260, (Aug. 17, 1999). On December 23, 1999, you submitted a favorable report to Congress for the Lower Columbia River dredging project. See Chief, U.S. Army Corps of Engineers, Report to the Secretary of the Army Re: Columbia and Lower Willamette Rivers Federal Navigation Channel, (Dec. 23, 1999) ("Report").

In your Report, you certified that the dredging proposal is "economically justified, and environmentally and socially acceptable." Id. at 7. This finding is based largely on the evaluation and conclusions presented by NMFS in its December 16, 1999 BiOp. See Columbia River Alliance for Nurturing the Environment v. NMFS, Civ. No. C00-231R (W.D. Wash. Aug. 4, 2000) at 7 (concluding that the "Corps' favorable report was necessarily based, in part, upon a determination that the Project would not jeopardize the continued existence of species protected by the ESA.") See also Chief's Report at 7 ("In response to [NMFS'] concerns I find that additional studies and extensive coordination will be required"). Indeed, NMFS expedited the consultation to assist the Corps in meeting its end-of-the-year statutory deadline. See Exh. 1 at 1 (NMFS explaining that it could not consult with tribal governments because "we appear to be running out of time for a policy consultation that meets the Corps schedule for completing its report to Congress. The Corps has advised us that they need a signed Biological Opinion by the morning of the 17th in order to complete their remaining work before the end of the year.")

On August 25, 2000, NMFS withdrew its BiOp for the Project because, in addition to the pending litigation challenging the BiOp, the Corps and NMFS "have not been able to reach consensus on the specific details of . . . [several] studies, which calls into question the conclusions in the biological opinion." Letter from Donna Darm to Colonel Randall J. Butler Re: Withdrawal of the Biological Opinion for the Columbia River Federal Navigation Channel Deepening Project and Request to Reinitiate Consultation at 2 (attached as Exhibit 4). Further undermining NMFS' confidence in the BiOp's conclusions is scientific evidence relevant to the biological effects of the project. Id. Finally, NMFS now doubts the Corps' ability to implement the restoration measures that the Corps promised during consultation. Id.

Without the Biological Opinion in place, the foundation for the statutorily required conclusions in your Report to Congress is now absent. Given that NMFS has gone as far as withdrawing its BiOp for the Project, any assumption that a new consultation will lead to a similarly favorable future BiOp prejudges the outcome of consultation, and is at best, highly speculative. Regardless of the outcome of any new consultation, the Project favorably described to Congress in your Report no longer has the same social, economic, or environmental consequences. Consequently, your Report no longer complies with the relevant statutory requirements.

To prevent Congress from acting on substantially incorrect information, the Corps must withdraw your December 23rd Report. If the current Report remains before Congress, our clients will be forced to consider their legal options. Please let us know no later than September 13, 2000 whether you will withdraw your December 23, 1999 Report. In the meantime, please feel free to contact us if you have any questions.

Sincerely,

Todd D. True

cc: Colonel Randall J. Butler, U.S. Army Corps of Engineers
Mark Schneider, Perkins Coie
Fred Disheroon, U.S. Department of Justice

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