Ninth Circuit Blows Through Erosion Fears

     PORTLAND, Ore. (CN) — The Ninth Circuit refused to intervene Tuesday in the recent water-level shakeup of a lake that feeds the Pacific Northwest’s Albeni Falls Dam.
     A 90-foot high dam in the Idaho Panhandle near the Washington border, Albeni Falls produces more than 200 million kilowatt hours of electricity a year for the Bonneville Power Administration.
     The Army Corps of Engineers manages the dam with BPA and the Bureau of Reclamation. They drew fire from conservationists in 2011 with an announcement that, during winter months, they would no longer hold steady the level of Lake Pend Oreille, which serves as the dam’s reservoir.
     But actually, the practice of holding the water level constant in winter months dated back only 1997. Before that the agencies allowed lake levels to fluctuate.
     The Idaho Conservation League petitioned the Ninth Circuit for review, saying the shakeup required a full environmental impact statement.
     A three-judge panel of the Ninth Circuit sided with the agencies Tuesday, nearly two years after holding oral arguments.
     “From 1997 to 2011, the agencies maintained the discretion they have always had to respond annually to changing conditions,” U.S. Circuit Judge Alex Kozinski wrote for the court. “Continuing to do so did not change the status quo.”
     The 12-page opinion cites evidence that the lake levels are not likely to rise and fall a range of five feet three times each winter, and that the proposal for flexible winter operations has elements of newer and older management strategies.
     Kozinski disagreed that the water-level change amounts to “a major federal action that significantly affects the human environment,” which would necessitate and environmental impact statement.
     “Requiring an agency to prepare an EIS every time it takes an action consistent with past conduct would grind agency decisionmaking to a halt,” Kozinski wrote.
     U.S. Circuit Judges Ferdinand Fernandez and Andre Davis joined the ruling.
     The conservation league had been represented by Bryan Hurlbutt, but the attorney with Advocates for the West did not return an email seeking comment.
     In its legal brief, the league had said winter operations could cause erosion that “would harm fish and wildlife habitat, promote the spread of invasive species, degrade water quality, and damage lakeside properties.”
     BPA countered that its operations would be “incremental” and “insignificant.”
     Though the agency said most soil erosion happens in the summer, the league said this argument “fails to recognize that these studies evaluated erosion under steady winter lake levels.”
     Attorney Hurlbutt told the court in 2014 that shoreline erosion is a serious problem around the reservoir, and that the BPA abandoned its plan to study it in detail.
     Hurlbutt said the erosion process is different in winter, when the water level in the lake is lowest.
     “It’s pretty well documented in the record that fluctuating lake levels and re-saturating soils, and then drawing the water back down, that can trigger a number of different erosion processes,” Hurlbutt told the court.
     A programmatic environmental impact statement for the dam, issued in 1995, “doesn’t really shed much light on what to expect under different operations,” Hurlbutt said.
     Attorneys for BPA argued that the dam’s winter operations are “extremely minor activity with only negligible impacts” and that the agency took the required “hard look” in its environmental assessment.
     “The primary problem with erosion is in the summertime, rather than the wintertime,” attorney Hub Adams told the panel. He said the level of analysis done was appropriate for operations that were “very minor in the grand scheme of things.”

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