PORTLAND, Ore. (CN) – Environmental groups urged a judge to order immediate changes to the government’s operation of a series of dams in the upper Willamette River basin, saying steelhead and Chinook salmon are too imperiled to risk waiting for litigation over dam operations to play out.
The Army Corps of Engineers operates a series of 13 dams in the upper Willamette River and its tributaries. The dams provide flood control, produce electricity and store water for irrigation and for the city of Salem, Oregon. The dams are also the main cause of the precipitous decline of upper Willamette steelhead and Chinook salmon.
But the government hasn’t acted to protect fish, environmental groups say.
In 2008, the National Marine Fisheries Service issued a biological opinion finding that the dams were decimating the protected fish by killing the majority of young salmon and steelhead as they make their way past the dams toward the ocean. The dams also torpedo water quality by raising water temperature to deadly levels and force young fish to cross reservoirs filled with predators and parasites.
In its biological opinion, National Marine Fisheries Service said the Corps could continue to operate the dams while reducing impacts to fish if it immediately implemented a slew of measures to improve fish passage and water quality.
But the Corps didn’t do that, and fish populations continued to decline.
In 2016, the fisheries service issued a status review finding that the continued lack of safe passage past dams and the water quality problems they create were keeping salmon and steelhead from recovering in the Willamette River. Without significant improvements, the service warned, the Chinook population in the middle fork of the Willamette might be lost completely.
So in March 2018, a trio of environmental groups sued the Corps and the fisheries service, demanding the agencies initiate a new consultation process to evaluate the dams’ effects on fish listed under the Endangered Species Act. The Corps has since initiated consultation, and the service says it will complete a new biological opinion. But that could take four years just to come up with a plan – time the environmental groups say the fish don’t have.
Actions could take even longer. The Corps says it is building a structure that will let fish safely pass the Cougar Dam by 2022. Another planned structure would help fish pass the Detroit Dam by 2028, assuming the Corps moves forward with that proposal and secures funding.
That’s just not soon enough according to attorney Lauren Rule, who on Wednesday argued on behalf of Northwest Environmental Defense Center, WildEarth Guardians and Native Fish Society.
“These species may not have four to five years left, they are in such perilous conditions,” Rule said.
At the hearing Wednesday, Rule asked U.S. District Judge Marco Hernandez to require the agencies to improve fish passage this year. Rule said the Corps should reduce the level of water in four reservoirs behind the tallest dams in the Willamette basin starting this fall. That would allow young fish passing the dams this winter to swim safely through the outlets in the dams that are used to regulate water flow, rather than being forced through the bone-crunching turbines.
Rule said the action was one the fisheries service had itself called for the Corps to perform, over a decade ago. Rule pointed to a memo she said showed the agency was “livid” when the Corps declined to take such an action.
“We didn’t come up with these measures out of thin air, and they didn’t come from our experts either,” Rule told Hernandez. “These are measures the agencies themselves have been discussing for many years and that National Marine Fisheries Service has urged the corps to take.”
The city of Salem intervened in the case, worried that changes to dam operations could increase turbidity – sediment suspended in the water – so much that the city’s main source of water could be harmed. Rule said any problems with the changes could be avoided by cooperation between the Corps, the city and the fisheries service.
Arguing for the government, U.S. Attorney Kaitlyn Poirer told Hernandez that the system of dams in the Willamette basin is too complex to take such an abrupt action. Poirer said resolving such complexity is the purpose of the agency consultation process laid out by the Endangered Species Act.
“Instead of allowing the Corps and agencies to complete the ESA progress as Congress intended, plaintiffs seek to usurp it,” Poirer said.
While none of the parties claimed the action being discussed would affect flood control, Poirer said it could have other detrimental effects.
“Plaintiffs’ measures would result in a complete elimination of power production at Cougar, Detroit and Lookout Point for about four months during peak production periods,” Poirer said.
Rule said the Endangered Species Act trumps concerns about recreation and agriculture. And she said the Corps is legally required to avoid harming protected species, even while it develops a plan to avoid harming them in the long-term.
“But they haven’t done that,” Rule said. “The agency is not ensuring that their actions aren’t going to cause irreparable harm to threatened species while they complete their four- or five-year process. And these fish continue to go downhill.”
Hernandez took the issue under advisement.