Army Corps reports on court-ordered fish recovery

U.S. District Court Judge Marco Hernandez issued an interim injunction last year directing the U.S. Army Corps of Engineers to begin implementing actions intended to improve conditions for fish passage and water quality at some of its 13 Willamette Valley Projects. Hernandez’s directed the Corps “to avoid irreparable harm” to upper Willamette River fish. Wild spring chinook and wild winter steelhead, along with bull trout. All are listed as threatened under the federal Endangered Species Act.

The court case was filed by conservation groups in 2018. Plaintiffs Northwest Environmental Defense Center, WildEarth Guardians, and Native Fish Society, represented by attorneys at Advocates for the West, had asked the court to force the Corps and NOAA Fisheries to reevaluate the impacts of the 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.

More than a million salmon and steelhead traditionally returned to Willamette River basin streams. Over the last two centuries, those populations have declined. In 2021, the number of steelhead counted at Willamette Falls totaled 3,952 fish. Of those, 2,326 were unclipped wild fish. The chinook salmon run last year was 31,777 fish.

In his summary August 17, 202 ruling in the case, Hernandez the Corps was “Far short of moving towards recovery, the Corps is pushing the UWR Chinook and steelhead even closer to the brink of extinction.”

The injunction will remain in effect until the issuance of a new Biological Opinion, due on December 31, 2024. It requires the Corps and NOAA Fisheries to provide status reports every six months detailing their progress and compliance with the injunction. This is the first Bi-Annual Report and includes data from September 1st through December 31st of last year.

“These bi-annual status reports represent a new phase of transparency and timely information sharing about what’s happening at Willamette dams and the impacts on fish populations and river function,” said Jennifer Fairbrother, Conservation Director at the Native Fish Society, one of the plaintiffs in the federal court case. “While these status reviews are mandated by the court, we are hopeful that they signal a future of greater transparency, coordination, and public engagement. Now that the Department of Justice has chosen to drop their appeal, it’s time to get down to the business of putting Willamette salmon and steelhead back on the road to recovery.”

The Corps had filed an appeal with the Ninth Circuit Court of Appeals but decided last month to drop the challenge to Hernandez’s order.

Hernandez’s injunction also ordered the establishment of an expert panel, comprised of two plaintiffs’ experts, two NOAA Fisheries biologists, two Corps employees, and two “ad hoc” federal experts. The court charged the expert panel with developing specific parameters of certain interim measures ordered in the injunction, the bi-annual report says.

By the end of 2021, the expert panel had developed 9 out of 15 plans required by the injunction. They are:

1. Foster Dam fall downstream fish passage

2. Cougar Dam fall reservoir drawdown for downstream fish passage

3. Detroit Dam lower regulating outlet for downstream water temperature management

4. Foster Dam spring downstream fish passage

5. Cougar Dam spring downstream fish passage (delayed refill)

6. Fall Creek Dam winter/spring downstream fish passage

7. Green Peter Dam out planting plan

8. Lookout Point/Dexter dams spring downstream fish passage and regulating outlet use for downstream water temperature management

In addition, interim measures developed prior to the injunction were continued. The court also ordered the Corps to conduct an annual Fall Creek Reservoir deep drawdown operation similar to prior years but to extend the dates from December 1st through January 15th.

The bi-annual report says actions that did not require expert panel development include:

1. Detroit Dam winter downstream fish passage

2. Big Cliff Dam total dissolved gas abatement

3. Detroit Dam spring downstream fish passage and summer/fall downstream water temperature management.

4. Hills Creek Dam winter downstream fish passage

5. Fall Creek reservoir extended deep drawdown

The injunction also requires the Corps to continue funding research, monitoring, and evaluation on the effects of the interim injunction measures on the listed chinook and steelhead species in the river.

The Expert Panel submitted the Willamette Project Interim Injunction Measures RM&E Plan to the court on February 18th. That plan will be in effect for the duration of the injunction, which is anticipated to extend through 2024 until a new Willamette River Biological Opinion is in place.

Detailed results of the RM&E will be made available on the Corps’ Willamette Valley Injunction webpage.