Dams Central Focus of Endangered Fish Dispute in Oregon

The Detroit dam on the Santiam River in Oregon. (Photo via U.S. Army Corps of Engineers)

PORTLAND, Ore. (CN) — Scientists fear the imminent extinction of winter steelhead in Oregon’s Willamette River, and spring chinook are not doing much better as the government assesses the main danger to fish there: the 13 federal dams it operates.

Environmentalists say the Army Corps of Engineers tried to upend that process by reallocating river water for cities, farms and industry that fish desperately need.

Spurred by litigation, the Corps in 2018 launched an evaluation of the dams and their effects on endangered salmon and steelhead. Federally run dams on the Willamette River block fish access to the majority of historic salmon and steelhead spawning grounds. And the deep reservoirs behind the dams hold back cold river water that the fish need to migrate upstream.

The Corps is in the process of working with the National Marine Fisheries Service to determine how to prevent extinction of the fish that have for millennia returned from the ocean to spawn in the cold rivers and streams that feed the Upper Willamette River.

Options on the table include spilling more cold water from the deepest layers of the reservoirs that prevent flooding Willamette Valley cities such as Salem. The Corps claims it does not need to take action to bolster salmon survival before that evaluation is completed in 2023.

The Endangered Species Act requires government agencies like the Corps that are in the middle of such evaluation to “refrain from making any irreversible or irretrievable commitment of resources” that could change the outcome or reduce the possibilities available to protect the species at issue. But according to a lawsuit filed in March, the Corps made a sideways request to Congress that could upend the fight to save the river’s fish.

In the midst of its evaluation, the Corps announced a plan to change the allocation of river water during dry years in order to benefit industrial, municipal and irrigation users. The Corps’ “share the pain” plan reduced water allocated to all categories of use, instead of prioritizing fish and wildlife by keeping water in the river during drought years. The Corps issued a biological assessment finding that its reallocation plan was unlikely to harm threatened salmon and steelhead — a conclusion National Marine Fisheries Service did not share.

The agency found in a 2019 biological opinion that the reallocation plan “is likely to jeopardize the continued existence of UWR Chinook salmon and Upper Willamette steelhead and destroy or adversely modify their designated critical habitats,” mostly by raising water temperatures to levels deadly to adult fish fighting the currents on their way home to spawn.

In September, the Corps asked Congress to adopt its reallocation plan. WaterWatch of Oregon and the Northwest Environmental Defense Center sued, claiming the plan would neuter the larger evaluation the Corps is conducting on the dams’ impact on salmon.

At a hearing in federal court held over Zoom on Tuesday, Andrew Missel argued on behalf of WaterWatch and Northwest Environmental that the plan would cause “irreversible and irretrievable harm” to salmon and steelhead. He added that, since it would be approved by Congress, the reallocation plan would then be out of reach for the court to correct. Missel said the Corps should finish its assessment under the Endangered Species Act before making such a major change to dam operations.

Missel asked the court to issue a preliminary injunction to prevent the Corps from adopting its reallocation plan and disavow the report it sent to Congress.

“The Corps broke the law by engaging in this action while at the same time engaging in ESA consultation,” Missel told Chief U.S. District Judge Marco Hernandez. “The agency is violating a procedure that impairs the process and will result in different conditions on the ground in the future. They just want to be free of any judicial review of their actions in this case.”

U.S. Attorney Michael Eitel told Hernandez, an appointee of President Barack Obama, that the idea that less water in the river would harm salmon was speculative.

“Plaintiffs make too many unfounded leaps to say that this reallocation will affect salmon,” Eitel said. “The Corps has submitted a report of recommendation to Congress, but there are many more layers of review. We don’t even have the facts yet in order to say yes, we are going to have an impact on salmon and steelhead at some point down the road.”

Eitel asked Hernandez to deny the motion for preliminary injunction.

Hernandez took the arguments under advisement. He did not say when he might issue a ruling.

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