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STOPPER Raymond Proffitt Foundation P.O. Box - 723, Langhorne, Pa. 19047-0723 gateway@rayproffitt.org |
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| Winter 99/2000 | http://www.rayproffitt.org | Margaret Spanier, President |
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STOPPER Raymond Proffitt Foundation P.O. Box - 723, Langhorne, Pa. 19047-0723 gateway@rayproffitt.org |
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| Winter 99/2000 | http://www.rayproffitt.org | Margaret Spanier, President |
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LEHIGH RIVER STOCKING ASSOCIATION
AND RAYMOND PROFFITT FOUNDATION
LAWSUIT AGAINST THE U.S. ARMY CORPS OF ENGINEERS
CENTRAL ISSUE JOHN WILMER Attorney for Plaintiffs
The central issue in this case is the Corps' decision to set minimum release levels from the Walter Dam that are below levels necessary to protect the environment of the Lehigh River. The Corps has set these levels at less than Q7-10, which is the lowest 7 day flow in ten years. This level is at drought conditions. At least one wildlife agency, U.S. Fish & Wildlife Service, has warned the Corps that these levels cause harm to the Lehigh River. In addition, environmental groups, such as ours, have asked the Corps to increase the minimum release levels during the summer months, when the Lehigh runs at low flows.
The Lehigh River is designated as a High Quality-Cold Water Fishes Watershed by Pennsylvania. It also is designated as a Wild and Scenic River. Yet, there are problems with the Lehigh, such as acid mine drainage from abandoned coal workings, malfunctioning septic systems, polluted run-off, etc. Increasing minimum release levels will benefit the environment by providing more water, thus diluting harmful discharges and improving conditions for the aquatic life. Increased levels also will promote recreation, such as fishing and boating.
The Corps' position is that it will only consider increasing the minimum releases during summer months if a non-federal sponsor will pay for storing the water sufficient to provide for the releases and who also will assume responsibility for the storage. The current asking price is $171,500 per year for a five-year contract.
All dams hold back water and release water, in varying amounts and for different purposes. Since water is always flowing into a dam, releases become necessary to prevent overtopping and flooding. The Corps holds back, or stores water whenever increased precipitation causes too much water to flow into the dam. This prevents downstream flooding. Once the storm event passes, then the Corps releases the water slowly. In fact, it is this purpose, or mission, for which the Walter Dam was constructed in 1961.
In addition to controlling flooding, the Corps stores water for other purposes. One of these is for white water recreation, which was mandated by law in 1986 specifically for the Walter Dam. To comply with this law, the Corps stores water during the spring and has increased flow releases five or six times during the spring and the fall.
Storage of water, whether it be for a few days, few months or for years is part of the Corps' responsibility in managing any dam. In other words, the Corps is already being paid by the taxpayer to store water for various statutory purposes. It should be noted that the Corps does not charge for storage of water to prevent flooding, or for storage of water for white water releases.
Plaintiffs argue that pursuant to a 1990 statute, the Corps is under a legal obligation to increase the minimum releases in order to provide environmental protection to the Lehigh River. Plaintiffs further argue that because of these legal obligations, the Corps cannot require money to increase the minimum releases.
Plaintiffs further argue that the Corps' position that it is required to seek payment for storage of water, even for environmental protection, violates the very laws that give the Corps authority to exist. The statutory purposes, or missions, of the Corps' activities are flood control, white water recreation (for this dam) and environmental protection. Taxpayers should not have to pay twice for the same service.
When the activity, however, is not a statutory mission of the Corps then money for storage may be allowed. In the past, the Corps has stored water for the Delaware River Basin Commission (DRBC) when necessary to increase flow to control the salt line in the Delaware River. In these cases, "water supply storage" or "drought control" are not missions of the Corps, but instead are activities the Corps engages in for profit. As long as such storage can be done consistent with other missions of the Corps, such as flood control or environmental protection, then the Corps may be within its rights to charge for such services.
It also should be noted that in the past the Corps has considered increasing the minimum release flow in conjunction with a private hydroelectric power plant. There too, the Corps sought money for water storage and release.
Another consequence of the Corps keeping its minimum release level at such a low flow is that the Corps must release large amounts of water in the spring. These mega-releases cause harm to the environment by killing wildlife nesting along the banks of the Lehigh, as well as killing young fish and eggs by flushing them out of their pools and riffles.
The Corps' action does not make sense from a viewpoint of environmental protection. In order to keep the Lehigh flowing at low levels during the summer (when the Lehigh needs the water), the Corps floods the Lehigh during the spring (when the Lehigh does not need the water), thus killing the very life that the Corps is required by statute to protect.
Finally, the Corps itself has never conducted studies of its minimum release policy to determine whether its actions are helping or hurting the environment. Such studies are required under various laws, including the Corps' duty to provide environmental protection. In fact, the Corps has ignored studies by others that show increased releases during low flow periods will benefit the Lehigh River.
The basis for the Corps minimum release policy is to keep open a road that runs through the base of and inside the dam. There was no statutory authority to build the road, and the Corps has never explained why such a road was built, other than they made the decision to place the road at its present location. During high precipitation events the road is frequently under water. It also should be noted that whenever someone is willing to pay the Corps to store water which would cover that road, then the Corps is willing to sacrifice the road.
The agency action that is being challenged is, first, violation of the Corps' statutory mandate, as well as violation of many laws, by setting and continuing minimum release levels that do not protect the environment of the Lehigh River. The second agency action is setting those release levels without considering the effects on the Lehigh, i.e., without conducting any review or studies, despite being advised by other wildlife agencies that these releases are harming the environment. Third is agency action causing large releases in the spring in order to maintain low release levels during the summer, thus harming the environment even more. The fourth agency action is storing water for drought purposes for DRBC, without consideration of the effect of such storage or the effect of future releases on the environment.
Plaintiffs are not asking this Court to set minimum releases. Plaintiffs are asking this Court to find that the Corps is violating various laws, including those that require environmental protection, and then require the Corps to consider new minimum releases, after studies and consultation with U.S. Fish & Wildlife Service ( a federal agency), the Pennsylvania Fish & Boat Commission ( a state agency), and a coalition of environmental groups such as ours who not only recreate in the Lehigh River, but also stock it with fish in an effort to improve this valuable resource.
It is hoped that the focus of the Corps will shift from making money to protecting the Lehigh River. But the Court must remove the money issue from the table before this change in attitude can begin.