Judge orders fish protection now

U.S. District Court Judge Marco Hernandez outlined in a draft order last Wednesday actions that the U.S. Army Corps of Engineers must take to protect threatened wild spring chinook and winter steelhead at its Willamette Valley dams. The case has been in the courts for three years.

Plaintiffs in the case consider the draft order a win, although after years of delay they say the two populations of fish listed as threatened under the federal Endangered Species Act have declined even further.

“It’s with mixed emotions that we read this draft order,” said Jonah Sanford, Staff Attorney for the Northwest Environmental Defense Center, one of the plaintiffs in the case. “We are thrilled that the Corps must meet the court ordered deadlines for action and also saddened that time was unnecessarily wasted at the expense of salmon and steelhead.”

Northwest Environmental Defense Center, WildEarth Guardians and Native Fish Society, represented by attorneys at Advocates for the West initially filed the lawsuit on March 18, 2018 in U.S. District Court in Portland against the Corps and NOAA Fisheries.

The plaintiffs asked the court to force the two federal agencies to reevaluate the impacts of the Corps’ 13 Willamette Valley dams on the threatened fish, to reinitiate consultation and to make immediate operational adjustments to dams on four tributaries of the Willamette River (McKenzie, North Santiam, South Santiam, and Middle Fork Willamette) that the groups say block between 40 and 90 percent of spawning habitat

In his summary judgement ruling in the case last year, Hernandez said that, “Far short of moving towards recovery, the Corps is pushing the UWR Chinook and steelhead even closer to the brink of extinction. The record demonstrates that the listed salmonids are in a more precarious condition today than they were at the time NMFS issued the 2008 Biological Opinion.”

He ordered the parties to submit a briefing schedule within fourteen days to determine the appropriate remedy and after that to work towards the remedies, which his draft ruling of July 14, 2021 outlines.

In his draft order, Hernandez said that “the Corps has fought tooth and nail to resist implementing interim fish passage and water quality measures that it was supposed to begin implementing a decade ago, and that NMFS has been recommending for years. The Court is disheartened by the fact that, when compared to how the Corps should have proceeded had it complied with the BiOp, much of the injunctive relief that the Court is now ordering can be considered, in many respects, a giant leap backward.

“Consequently, the Court has no patience for further delay or obfuscation in this matter and expects nothing short of timely implementation of the injunctive measures and the experts’ proposal outlining the parameters for those measures.”

“We celebrate today and hope it will mark the decisive moment that saved wild Chinook salmon and winter steelhead in the Willamette River,” said Marlies Wierenga, Pacific Northwest Conservation Manager for WildEarth Guardians. “Judge Hernandez was adamant in his ruling last summer, and again today, that the Corps’ operation of the Willamette Valley dams has pushed these fish toward extinction and the agency must take action to reverse that decline.”

Hernandez noted that NOAA Fisheries in its 2008 biological opinion analyzing the impacts of the Corps’ Willamette Valley projects that “lack of passage is one of the single most significant adverse effects on both the fish and their habitat,” and “[w]ater quality problems are one of the major limiting factors in [downstream] habitat.”

Among NOAA’s reasonable and prudent alternatives outlined in the 2008 BiOp, Hernandez said in the draft order this week that:

“The Corps has not begun operating any of the permanent downstream passage structures required under the BiOp and will not meet any of the future deadlines for doing so; has essentially abandoned plans to build a facility at Lookout Point Dam; and has not begun studying or planning to construct the fourth fish passage facility discussed in the BiOp. Except for the annual deep drawdown at Fall Creek Reservoir, the Corps has not consistently carried out downstream fish passage measures in the WVP.”

Nor, Hernandez said, has the Corps constructed the water temperature control tower at Detroit Dam. “Water temperatures below Detroit, Green Peter, and Lookout Point dams continue to be too cold in summer and too warm in fall, and TDG (Total Dissolved Gas) exceedances repeatedly occur below Big Cliff Dam.”

“As early as 2017, NMFS determined it was necessary and, as provided in the RPA, requested the Corps begin outplanting adult UWR Chinook salmon above Green Peter Dam; however, the Corps has not done so,” Hernandez continued.

The Corps and NOAA Fisheries did reinstitute consultation on a new BiOp in April 2018, but that won’t be done until the end of 2023. Hernandez added that it took eight years to complete the 2008 Biological Opinion.

In its arguments before the court, according to Hernandez, the Corps argued it lacked authority for operational changes at the dams. However, Hernandez wrote, “…the Corps has broad discretion…to conduct operational measures that preclude hydropower generation for the benefit of the listed salmonids, so long as hydropower generation is not eliminated during the entirety of the power production period.”

Among the interim measures (measures the Corps can do as it and NOAA Fisheries prepare a new BiOp) Hernandez listed in his draft order for the Corps to:

– In the McKenzie basin the Corps shall conduct a deep drawdown at Cougar reservoir and begin spring passage in 2022;

– In the North Santiam basin the Corps will carry out fish passage and water quality operations at Big Cliff and Detroit dams;

– In the South Santiam basin the Corps shall begin outplanting adult upper Willamette River chinook above Green Peter Dam and once that is done, the Corps shall begin juvenile downstream passage. In the fall the Corps shall initiate spring and fall spill operations at Foster Dam;

– In the Middle Fork Willamette basin determine the feasibility of a deep drawdown at Lookout Point reservoir and if feasible begin deep drawdowns in the fall of 2022. Begin spring spill at Lookout and Dexter dams in 2022. Begin a deep drawdown in 2021 at Fall Creek Reservoir. Make improvements to and begin operating the Dexter adult fish facility within two years. In 2022 begin up and downstream passage at Fall Creek Reservoir.

“This represents a true turning point for the Willamette and Oregon’s iconic wild fish,” said Jennifer Fairbrother, Conservation Director for the Native Fish Society. “Actions are ordered at multiple dams with deadlines as soon as a few months for downstream volitional fish passage and water quality mitigation measures – two of the main actions needed to recover these fish populations.”

Throughout the coming years until a new BiOp is completed, Hernandez ordered that an expert panel made up of plaintiffs’ experts, NOAA biologists and Corps engineers will advise on completing the interim measures.

The Corps has begun some modifying operations at Detroit Dam to improve juvenile downstream passage survival by releasing water exclusively through the upper regulating outlets when downstream passage rates are high.

Normally, the Corps allows water to flow through turbines for power generation. Instead, the Corps will not operate the turbines between the hours of 6-10 a.m. and 6-10 p.m., except in the case of emergencies, from Nov. 1, 2020 – Feb. 1, 2021.

The Corps said the operation is part of a suite of interim measures that it is planning to implement to benefit ESA-listed salmon in the Willamette River Basin while it works to complete the Willamette Valley System Environmental Impact Statement and associated Endangered Species Act consultation on the Corps’ operation and maintenance of the Willamette Valley Project.

Also in 2019, the Corps laid out plans to build a selective water withdrawal structure at Detroit Dam on the North Santiam River at a cost of $100 to $200 million. The structure would provide water temperature control downstream of Detroit and Big Cliff dams and it would provide downstream juvenile fish passage, both measures required in the 2008 BiOp that should have been completed much earlier. The Corps would continue to transport adult chinook salmon and steelhead upstream of both dams where they can spawn naturally.

Another measure included in the 2008 BiOp’s RPA is downstream fish passage at the Corps’ Cougar Dam on the McKenzie River. That project was to be completed by 2014, but the Corps only put out for public review its environmental assessment for the project in March 2019. The EA called for a floating surface screen fish collector in the reservoir coupled with truck and haul transport of the juveniles downstream of the dam.