A federal judge has ordered the U.S. Army Corps of Engineers to take immediate action to improve fish passage at dams in the Willamette Basin.
In a final opinion and order issued this week, U.S. District Judge Marco Hernandez said the Corps had for years failed to provide adequate passage for threatened chinook salmon and winter steelhead trout at dams it operates in the basin.
“As 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,” Hernandez wrote in the opinion.
The order comes a little over a year after the court decided in favor of three environmental organizations that sued the Corps and the National Marine Fisheries Service, arguing the agencies weren’t doing their part to protect the species.
Laurie Rule is a senior attorney at Advocates for the West, a nonprofit environmental law firm that represented the plaintiffs. She says the dismal state of salmon and steelhead runs this year underscore the importance of the judge’s order.
“It’s important because these fish are in really bad shape,” Rule said.
Chinook salmon and steelhead in the Upper Willamette River system are both listed as threatened under the Endangered Species Act. Dams on the Willamette and its tributaries have blocked access to spawning grounds for the fish, contributing to population declines.
In a 2008 biological opinion, the National Marine Fisheries Service found that “lack of passage is one of the single most significant adverse effects on both the fish and their habitat.” The service outlined a number of steps the Corps could take to prevent the species from going extinct. The judge’s opinion says the Corps has been dragging its feet.
“The status of the species has continued to decline since the 2008 BiOp was issued,” Hernandez wrote, “and the Corps’ operation of the [Willamette Valley Project] is a cause of that decline.”
The Corps argued in court that it hadn’t done “irreparable harm” to the species because they hadn’t been downgraded from “threatened” to “endangered.” The judge rejected their arguments.
“Unfortunately, the Corps has not been doing its job for a very long time,” said Jen Pelz, wild rivers program director for WildEarth Guardians, one of the plaintiffs. “We welcome this immediate action.”
The Corps said in a written statement that the agency will review the judge’s order to ensure compliance.
“We take our Endangered Species Act obligations seriously and are committed to taking actions that will benefit ESA-listed salmon and steelhead while continuing to work on finding solutions that balance our authorized purposes,” the statement reads.
The judge’s order directs the Corps to begin drawing down the water level in Cougar Reservoir on the South Fork McKenzie River east of Eugene.
Fish have three routes past Cougar Dam and out of the reservoir: over the top, through the turbines or through openings called “regulating outlets,” which are the deepest of the three. Drawing down the level of the reservoir closer to those outlets is intended to help juvenile fish find them easier. The drawdown will affect hydropower generation at Cougar Dam and could increase the risk of looting of cultural resources in the dry portion of the lakebed, the judge’s order says.
This fall, the Corps must also begin conducting overnight spill operations at Foster Dam on the South Fork Santiam River near Sweet Home. The goal is to stop the flow of water — and, therefore, fish — through the turbines at night when fish are more likely to be migrating, instead sending them over the dam and giving them a higher chance of survival. The order says the spill operations will also affect hydropower generation and possibly summer storage of water used for irrigation.
The judge convened a panel of experts from the environmental groups, Army Corps and National Marine Fisheries Service to design the implementation plans. Additional measures to address fish passage and water quality in other parts of the Willamette Basin will commence later.