VICTORY! Judge orders immediate actions to save Willamette River Chinook salmon and winter steelhead.
7th of Sep 2021
Advocates for the West won a strong victory for threatened Upper Willamette River wild spring Chinook salmon and winter steelhead last week when U.S. District Judge Marco Hernandez issued a final opinion and order directing the U.S. Army Corps of Engineers (Corps) to immediately undertake new measures at dams in Oregon’s Willamette River basin.
The injunction requires the Corps to change its dam operations in numerous ways to improve fish migration and water quality in four tributaries of the Willamette River. The first two actions ordered are a deep drawdown of Cougar Reservoir on the South Fork McKenzie River and spill operations at Foster Dam on the South Fork Santiam River this fall. Further actions will follow, including at dams on the North Santiam River and Middle Fork Willamette. The Corps is also ordered to assess the landslide-risk of conducting a deep drawdown at Lookout Point Reservoir on the Middle Fork Willamette.
In the final order, Judge Hernandez found that these actions are necessary because, “[a]s evinced by the listed species’ continuing decline, the Corps’ failure to provide adequate fish passage and mitigate water quality issues is causing substantial, irreparable harm to the salmonids.”
Deep drawdowns require the Corps to lower the elevation of the reservoirs to within 25 feet or less of the dams’ regulating outlets (ROs). As ordered, the Corps must prioritize flows through the ROs during drawdowns, instead of through hydropower turbines, especially during the night when fish have higher rates of migration. Spill operations that prioritize water flow over the top of the dam rather than through turbines can also assist downstream fish passage. Other measures are aimed at improving water temperatures and levels of dissolved gas below the dams.
We filed suit in 2018 on behalf of Northwest Environmental Defense Center, WildEarth Guardians, and Native Fish Society, asking 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 that block between 40 to 90% of spawning habitat.
Years of inaction by the Corps led to rapidly dwindling numbers of spring Chinook salmon and winter steelhead. In August 2020, Judge Hernandez ruled in our favor on the legal merits, acknowledging that the federal agency’s’ failure to act led to unlawful “take” of the species and jeopardized the species’ survival and recovery, in violation of the Endangered Species Act. The Court’s ruling last week set forth the actions the Corps must complete to remedy those legal violations.
In the final order, Judge Hernandez also explained that the Corps’ 1950 report for the Project was “just a ‘general guide’ for management of the dams in the Columbia and Willamette basins, which could be adjusted later as conditions changed or more information about the dams’ effects became known—expressly including impacts to fish.”
“This is a critical piece of the Court’s order,” noted Senior Attorney Laurie Rule. “The Corps can no longer claim it does not have legal authority to take actions that are imperative for saving these fish.”
The Court has assembled an expert panel, composed of our client’s experts, two National Marine Fisheries Service biologists, two Corps employees, and two “ad hoc” Federal experts, to draft the implementation details for each of the required actions. In August, the Court ordered that implementation plans be crafted for the Cougar deep drawdown and Foster spill operations in advance of the final opinion and order so that these actions can be immediately initiated with the issuance of the final order. Timelines have been established for the expert panel to complete plans for the remaining actions ordered.