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Judge Says No To Expedited Hearing But Lawsuit Over Willamette Basin Dams Moves Forward
Posted on Friday, February 08, 2019 (PST)

A 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.

 

The 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.

 

Historically, 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.

 

Late 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’).”

 

They 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.”

 

“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 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.”

 

After 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.

 

The 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.

 

Russo, 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.

 

“Should 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.

 

The 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.”

 

They 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.

 

For 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.

 

Operations to improve water temperature and dissolved gas levels at Detroit and Big Cliff were expected by 2009 and at other dams in 2010.

 

(The 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,” http://www.cbbulletin.com/440264.aspx.)

 

Also see:

 

-- 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

 

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