U.S. District Court case asking for operational changes at Willamette River basin
dams was slowed by the partial government shutdown in January and is now back
on track, but not at the speed plaintiffs had asked for in November.
coalition of conservation groups asking for the changes, Northwest
Environmental Defense Center, WildEarth Guardians and Native Fish Society,
filed the suit March 13 in U.S. District Court in Portland against the U.S.
Army Corps of Engineers and NOAA Fisheries. They want the Corps and NOAA to
reinitiate consultation on the impacts of dams in the Willamette River watershed
on two species – upper Willamette River wild spring chinook and upper
Willamette River winter steelhead – listed in 1999 as threatened under the
federal Endangered Species Act.
around 325,000 chinook and 220,000 steelhead made their way up Willamette Falls
to spawn in the upper river basins, but last year an estimated 5,880 wild
spring chinook and 822 steelhead returned – 99 percent less than historical
numbers – they said.
last year, the groups filed a motion for preliminary injunction asking the
court for specific changes at the Corps dams that they had hoped would begin
this spring to benefit the fish at risk. In the Nov. 30, 2018 motion, the
groups asked the court to “to take immediate actions to reduce mortality of and
injury to Upper Willamette River (“UWR”) Chinook salmon and Upper Willamette
River steelhead from its ongoing operation of the Willamette River Basin Flood
Control Project (‘Willamette Project’).”
went on to say that the Corps is violating the ESA “by continuing to operate
the Willamette Project in ways that cause significant and irreversible harm to
these species and their habitat before completing a new ESA consultation over
operation of the Project.”
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
Nov. 30 motion for preliminary injunction said. “Plaintiffs’ requests focus on
operational changes to improve water quality, water flows, and fish passage
past dams to meet the needs of UWR Chinook salmon and steelhead.”
the partial government shutdown that began in late December looked like it may
last longer than anticipated, the U.S. Department of Justice filed Jan. 3,
2019, for an extension of time for submitting their motion in opposition to the
plaintiffs’ Nov. 30 motion for preliminary injunction. That extension, which
was unopposed by the plaintiffs, was for 12 days after the shutdown ends and
appropriations are restored, which they eventually were Jan. 25.
plaintiffs filed Jan. 24 to lift the stay and asked Magistrate Judge Jolie A.
Russo for an expedited hearing schedule, one they hoped would get the court
case back on track for the spring injunction.
while granting the plaintiffs a lift in the stay, declined to adopt the
plaintiff’s proposed schedule. That schedule would have ordered the defendants
to complete their motion in opposition by Feb. 8 and it asked for immediate
oral arguments. Instead the judge set the
date for their response at Feb. 25, with the court taking plaintiff’s motion
for a preliminary injunction March 25. “The request for oral arguments will be
considered in due course,” Russo said.
the Court deem the preliminary injunction motion appropriate for disposition
with oral argument upon review of the briefings, it will be scheduled
accordingly. Further case management issues will be discussed following this
Court's final ruling on the preliminary injunction motion,” she said in her
Jan. 24 order.
Corps operates a series of 13 dams in the Willamette River watershed on four
tributaries of the river, and NOAA Fisheries is the federal agency that
oversees salmon and steelhead recovery. The conservation groups said in their
initial complaint that those dams block 40 to 90 percent of former spawning
habitat and “their large reservoirs and high head (dam height) make it nearly
impossible for small fish to swim downstream.”
go on to say that NOAA required the Corps in 2008 to complete a number of
actions by specific deadlines in order to recover the threatened chinook and
steelhead. Yet, many of the mandatory actions have been delayed by the Corps,
such as the requirement to improve dam passage for adult and juvenile fish.
example, they said, structural or operational changes to improve downstream
passage were expected to be completed at Cougar Dam by 2014, followed by
Lookout Point in 2021.
to improve water temperature and dissolved gas levels at Detroit and Big Cliff
were expected by 2009 and at other dams in 2010.
Corps has taken public comments on these improvements at Detroit and Big Cliff
dams in a National Environmental Policy process. See, CBB, February 23, 2018,
“Corps Considers Mixing Tower At Detroit Dam, Would Be One Of Three In Oregon,”
CBB, March 16, 2018, “Conservation Groups Sue Federal Agencies Over ESA-Listed
Willamette Salmon, Steelhead,” http://www.cbbulletin.com/440366.aspx
CBB, November 3, 2017, “Conservation Groups Announce Intent To Sue Corps Over
Willamette Chinook, Steelhead,” http://www.cbbulletin.com/439813.aspx