A federal judge has ruled in favor of claims that federally owned dams on the upper Willamette River have failed to carry out Endangered Species Act protections for chinook salmon and steelhead.
U.S. District Judge Marco A. Hernandez ruled Tuesday that the Army Corps of Engineers and the National Marine Fisheries Service (NMFS) fell short of their legal obligations by delaying action or failing to take necessary steps under a 2008 Willamette River Biological Opinion plan. The plan included dozens of measures to ensure the survival and recovery of upper Willamette River wild spring chinook and winter steelhead.
It was a result of a previous lawsuit filed in 2007 by environmental organization Willamette Riverkeeper and Northwest Environmental Defense Center against the Corps for not producing a Biological Plan for the Willamette Basin and failing to comply with the ESA.
Northwest Environmental Defense Center, WildEarth Guardians and Native Fish Society, represented by the law firm Advocates for the West, filed the lawsuit in 2018 asking the court to compel the Corps to make immediate operational adjustments to dams on four key tributaries to save the fish.
“The Corps has known for more than a decade what must be done to save these fish, but they have failed to act,” Northwest Environmental Defense Staff Attorney Jonah Sandford said.
Judge Hernandez found the most significant example of the Corps’ failure under the plan was the failure to construct downstream fish passage in a timely manner at Cougar Dam on the South Fork McKenzie River. The deadline for the construction was 2014 and the Corps is only in the design phase and estimates the project will not be completed until 2022. Other failures include the lack of a water temperature control structure at Detroit Dam on the North Santiam River.
Dams on the Willamette’s four key tributaries block between 40% and 90% of spawning habitat.
Native Fish Society Conservation Director Jennifer Fairbrother said adequate fish passage systems are among the big-ticket items that weren’t completed.
“These dams don’t have fish ladders… at this point, there is not an ability for these fish to move of their own volition easily above and below the dams,” Fairbrother said.
The other items that weren’t completed included infrastructure to improve water quality by maintaining cooler temperatures and to correct unnatural flows created by the dams.
The court ordered the parties to submit a briefing schedule within fourteen days to determine the appropriate remedy.
“Hopefully, we can get some interim changes in place in the basin that will help salmon and steelhead until the Corps and the National Marine Fisheries Service are able to come up with a new plan of action for recovering these fish,” Fairbrother said.
The Corps’ Portland District Public Affairs Specialist Tom Conning said the agency does not comment on ongoing litigation. However, they are aware of the court’s ruling and are reviewing the decision.
The National Marines Fisheries Service said it was not able to provide comment.