Four conservation groups
filed a motion for a preliminary injunction in U.S. District Court in Portland Friday
(Nov. 30) asking the court to compel the U.S. Army Corps of Engineers to make
immediate operational changes at Willamette River basin dams to aid threatened
salmon and steelhead.
The changes, the groups say,
are required by a 2008 biological opinion of the Corps’ Willamette River basin dams
and are designed to help avoid jeopardy of upper Willamette River chinook salmon
and upper Willamette winter steelhead, both listed in 1991 as threatened under
the federal Endangered Species Act.
The groups had initially filed a complaint
in the same court March 13 against the Corps and NOAA Fisheries for what they
said was the agencies’ failure to protect and recover the threatened fish. They
wanted the Corps and NOAA to reinitiate consultation on the impacts of
Willamette dams on the two species, which the agencies did soon after the
groups initiated the court case.
Now, while the Corps and NOAA develop a
new BiOp, the groups are asking the court in their request for an injunction to order the Corps to prioritize dam
operations for the benefit of the threatened fish except as needed for flood
control and human health. Proposed changes by the groups include deeper
reservoir drawdowns at Detroit, Cougar, Fall Creek, and Lookout Point dams to
aid fish passage, use of regulating outlets to discharge cooler water at
Lookout Point and Detroit dams and better monitoring and coordination with
state and federal agencies.
They filed the request in court Friday, Nov. 30, also
asking for oral arguments. The groups are the Northwest Environmental Defense
Center, WildEarth Guardians and Native Fish Society, represented by attorneys
at Advocates for the West.
In a news release, the groups said that the actions by
the Corps are needed to meet the mandates of the ESA to recover the listed
chinook and steelhead.
“The National Marine Fisheries Service’s 2008
Biological Opinion covering the Willamette dams determined that without these
changes the dams would jeopardize the survival and recovery of the two
species,” they said. “Yet over the past 10 years, the Corps has routinely
dodged the agreed-upon actions, missed deadlines, and sidelined state and
federal agencies to avoid improving fish passage, flows, and water quality at
the dams the Corps operates on the Willamette.”
The Willamette River dams are on the North Santiam,
South Santiam, McKenzie, and Middle Fork Willamette rivers. The groups say that
the dams block 40 to 90 percent of habitat in these river sub-basins and prevent
adult fish from returning to the spawning grounds upstream of the dams.
“We simply can’t continue waiting for the Corps to act
while these salmon and steelhead populations teeter on the brink of
extinction,” NEDC’s executive director, Mark Riskedahl, said.
More than 10 years ago, the NEDC and other
organizations brought a separate lawsuit against the Corps and NOAA Fisheries
to protect Willamette salmon and steelhead. That resulted in a settlement and
the issuance of the 2008 BiOp.
also completed a Recovery Plan which identified the risk of extinction for the
two species, according to the group’s Nov. 30 injunction request with the
court. It said that five of seven chinook populations were rated as very high
risk of extinction, one was moderate risk, and one was low risk. Three of the
steelhead populations were rated as low risk of extinction and one was rated as
Oregon Department of Fish and Wildlife has recently said that there is a 90
percent chance of extinction of one population of upper Willamette steelhead if
predation by sea lions at Willamette Falls is allowed to continue. NOAA
Fisheries approved an Oregon plan to lethally remove up to 93 California sea
lions at the Falls Oct. 26.
CBB, Nov. 20, 2018, “Oregon Plan To Euthanize Sea Lions At Willamette Falls
Approved By NOAA Fisheries,” http://www.cbbulletin.com/441816.aspx)
Historically, around 325,000 chinook and
220,000 steelhead made their way up Willamette Falls to spawn in the upper
river basins, but in 2018 an estimated 5,880 wild spring chinook and 822
steelhead returned – 99 percent less than historical numbers – the groups said.
by the Corps in implementing the BiOp’s requirements, the groups say, caused them
to file the second lawsuit in March. Since that complaint was filed in District
Court, the Corps has agreed to reinitiate ESA consultation over the operations
of the dams, but that process will take about four years, concluding in 2023.
“In light of the continued decline
of these highly imperiled species, the ongoing adverse effects of the
Willamette Project, and the length of time the Corps estimates is needed to
complete a new consultation, Plaintiffs request an injunction that would alter
operations of the Willamette Project to improve conditions for salmon and
steelhead pending completion of consultation,” the preliminary injunction says.
Specifically, according to the
motion, the operations the groups are asking for are:
-- Draw down Detroit Reservoir to
the regulating outlets (1,370’) by November 15 and hold until December 15, and
prioritize use of the regulating outlets over turbines for that time.
-- Draw down Cougar Reservoir to the
regulating outlets (1,505’) by November 15 and hold until December 15. Maintain
Cougar Reservoir at minimum conservation pool (1,532’) from March 1 to May 1
and prioritize use of regulating outlets over turbines for that time.
-- Draw down Lookout Point Reservoir
to the regulating outlets (750’) by November 15 and hold until December 15.
Conduct ungated spill at Lookout Point Dam for 2-4 weeks in spring.
-- Conduct an additional draw down
at Fall Creek Dam to 685’ from April 1 to June 30.
-- Re-model OMET alternatives:
drawdown of Detroit Reservoir from fall through April, run-of-the-river
operation at Cougar Dam, and run-of-the-river operation at Lookout Point Dam
without assuming that the Corps must fulfill all authorized purposes of the
-- Outplant adult hatchery chinook
salmon above Green Peter Dam to study spawning success and juvenile downstream
migration through Green Peter.
-- Reduce water temperatures below
Lookout Point and Detroit dams in fall-winter by using the lowest regulating
outlets to discharge colder water during draw down operations.
-- Adopt and strictly follow
maintenance schedules and emergency protocols provided by NOAA and ODFW to
reduce water quality impacts during such events.
-- The Corps must coordinate with NOAA
and ODFW on implementation of the above measures, monitoring of the measures,
adjustments of measures based on that monitoring, and other interim measures the
Corps should take to benefit UWR salmon and steelhead.
-- The Corps must keep Plaintiffs
and the Court apprised of its actions and the results, and the Court will
resolve any disputes that arise over these measures.
The Nov. 30 Motion for a Preliminary
Injunction is at https://pdf.wildearthguardians.org/support_docs/PI%20motion_filed.pdf.
March 16, 2018, “Conservation Groups Sue Federal Agencies Over ESA-Listed
Willamette Salmon, Steelhead,” http://www.cbbulletin.com/440366.aspx.
CBB, February 23, 2018, “Corps Considers
Mixing Tower At Detroit Dam, Would Be One Of Three In Oregon,” http://www.cbbulletin.com/440264.aspx
--CBB, December 8, 2017, “Corps Seeking Public Input On
Detroit Dam Fish Passage, Temperature Control Scoping Process,” http://www.cbbulletin.com/439923.aspx
-- CBB, July 14, 2017, “Ocean Conditions, Sea Lions Faulted
For Low Willamette Steelhead Return; Only 822 Wild Steelhead” http://www.cbbulletin.com/439268.aspx
-- CBB, Aug. 11, 2017, “ODFW Analysis: With Continued Sea
Lion Predation Willamette Winter Steelhead At Risk Of Extinction” http://www.cbbulletin.com/439416.aspx
-- CBB, June 16, 2017, “Willamette BiOp For Fish: Four
Subbasins Focus Of Corps’ Salmon Reintroduction Programs Above Dams” http://www.cbbulletin.com/439107.aspx
-- CBB, June 9, 2017, “Groups Sue Corps Over Upper
Willamette Summer-Run Steelhead Hatchery Releases; Says Harm Wild Fish” http://www.cbbulletin.com/439056.aspx