Victory for Oregon Salmon and Steelhead!
19th of Jul 2021
Advocates for the West is celebrating a sound victory for threatened Upper Willamette River wild spring Chinook salmon and winter steelhead. On Wednesday, U.S. District Judge Marco Hernandez of Oregon federal court outlined the actions that the U.S. Army Corps of Engineers (Corps) must immediately take to protect these imperiled species from extinction.
In a strongly worded draft order, Judge Hernandez made clear he “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 filed suit against the Corps in 2018 on behalf of the Northwest Environmental Defense Center, WildEarth Guardians, and Native Fish Society. Our suit asked the court to save these iconic fish by compelling the Corps to make immediate operational adjustments to dams on four key tributaries of the Willamette River (North Santiam, South Santiam, McKenzie and Middle Fork Willamette) that block between 40 to 90% of spawning habitat.
Years of inaction by the Corps had led to rapidly dwindling numbers of spring Chinook salmon and winter steelhead, alarming the groups and many Oregonians. In August of 2020, Judge Hernandez ruled in favor of the plaintiffs, acknowledging that the Corps’ dam operations were jeopardizing the survival and recovery of the two species and causing unlawful “take” of the species in violation of the Endangered Species Act (ESA). This latest ruling establishes the operational changes the Corps must immediately make to rectify its legal violations.
“The Court recognized the Corps can, and must, significantly change operations at the dams to remedy the agency’s prolonged ESA violations by improving fish passage and water quality,” said Senior Attorney Laurie Rule. “The measures he has ordered were supported by our experts, as well as experts from the National Marine Fisheries Service and Oregon Department of Fish and Wildlife, and far surpass the weak proposal offered by the Corps.”
“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.”
In the draft order, Judge Hernandez also explained that one of the Corps’ frequent excuses of lacking authority for operational changes at the dams was incorrect. He stated “…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.” This affirms that more robust actions at the dams can be initiated to help the listed species than the Corps has claimed they could legally undertake.
He further noted that he is “disheartened by the fact that, when compared to how the Corps should have proceeded had it complied with the BiOp [Biological Opinion], much of the injunctive relief that the Court is now ordering can be considered, in many respects, a giant leap backward.”
“It’s with mixed emotions that we read this draft order,” said Jonah Sanford, Staff Attorney for the Northwest Environmental Defense Center. “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.”
In addition to immediate actions, the Court also ruled that an expert panel, composed of Plaintiff’s experts, fish biologists from National Marine Fisheries Service, and an engineer for the Corps, work out the implementation details. We will now pay close attention to the Corps’ actions to ensure they finally come into compliance with their legal obligation to protect these iconic fish from the threat of extinction.