Judge Reviews Keechelus Dam Repairs - may halt half-repaired dam
because of Endangered Species Act
Judge Alan McDonald is being asked to decide if two federal agencies failed to fully consider the Endangered Species Act and federal environmental laws in selecting a plan to fix the dam.
McDonald appeared troubled by the prospect of halting work that is half complete, according to comments he made during Thursday's 90-minute hearing in U.S. District Court in Yakima.
The majority of repairs, begun last fall, should be complete by November.
The earthen dam near the summit of Snoqualmie Pass, which has a capacity of 157,800 acre-feet of water, is in trouble because of cavities found inside the dam more than four years ago. The cavities were caused when construction timbers left inside the dam rotted.
A $32 million repair plan includes removing and replacing the top half of the 128-foot-high dam. Keechelus holds more than 10 percent of the total water storage that serves the 460,000-acre Yakima Irrigation Project.
But the Yakama Nation, which sued the Bureau of Reclamation and the National Marine Fisheries Service last summer, argues the bureau too narrowly interpreted the Endangered Species Act and the National Environmental Policy Act. The nation wants the project stopped and modified to include adding fish ladders so migratory fish have access to upstream spawning habitat.
The fisheries service, responsible for protecting steelhead, urged the bureau to consider adding fish ladders to the repairs throughout much of 2001 before ultimately agreeing to the bureau's plan.
The bureau, according to tribal attorney Thomas Zeilman, should have considered the effects dam operations have on the environment in addition to the need to fix the cavities. Those operations, he told McDonald, are contributing to a decline in steelhead trout, a migratory species listed as threatened under the Endangered Species Act.
Zeilman told McDonald the bureau is bent on repeating the same mistakes that occurred when the dam was completed in 1917.
"If you continue to build new dams that block species habitat, you are continuing to see a decline in the species and that leads to jeopardy," Zeilman said.
The agencies, represented by federal Justice Department lawyers, contended the agencies met the legal requirements and considered fish issues before proceeding.
Donna Fitzgerald, a Justice Department attorney from Washington, D.C., told McDonald the agencies aren't required to select the most environmentally friendly alternative, only that they consider it.
The bureau looked at several options before picking the repair plan. Others included breaching the dam to permanently end its life as a storage lake, building an entirely new dam, or doing nothing.
She said the dam is continuing to deteriorate and must be repaired to avoid a failure and the resulting rampaging flood waters that could take an estimated 425 lives downstream.
"If alternatives are not practical or do not fit within the time frame, they do not have to be considered," she said.
Fitzgerald reminded McDonald the bureau will seek federal funds next year to conduct a feasibility study to identify at which dams fish ladders should be added. Bureau officials offered the fish ladder study after Yakima Nation officials first raised objections.
McDonald told Zeilman earlier in the hearing he was concerned about substituting his judgment for that of agencies that have experts in dam repair.
"It's for people who repair dams to decide how quickly the work should be done," he said.
Later, McDonald asked Zeilman how large a financial bond the nation would be willing to post were he to order the repairs be halted for a new environmental review.
Zeilman responded he wasn't certain.
"It could be substantial," McDonald quickly added.
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