PORTLAND, Ore. (CN) — Dams in the Willamette Valley are killing the majority of the young salmon and steelhead that try to pass on their way out to sea, and the Army Corps of Engineers violated the Endangered Species Act by refusing to take steps to reduce those deaths, a federal judge ruled Monday.
More than two decades ago, government scientists began evaluating a network of 13 dams in the Willamette Valley, eventually finding that dam operations were in danger of completely wiping out certain runs of salmon and steelhead and requiring improvements in water quality and fish passage to avoid that. The Army Corps was supposed to complete upgrades years ago. Now, the Corps says, the projects won’t be done until at least 2028.
Environmental groups sued in 2018, asking a judge to enforce protections for Upper Willamette River Chinook and steelhead, which are listed as threatened under the Endangered Species Act. On Monday, U.S. District Judge Marco A. Hernandez found the Corps has continued to operate for years while killing fish at rates government scientists have said could jeopardize the continued existence of salmon and steelhead. Hernandez criticized the Corps’ failure to ask for a new evaluation of the dams’ effects on salmon when it was clear it wouldn’t meet its deadlines, calling it “a substantial procedural violation.”
Meanwhile, other problems like warming oceans, habitat degradation and sea lion predation are pushing salmon and steelhead closer to the brink. The National Marine Fisheries Service, tasked with evaluating whether government projects violate laws intended to protect the environment, issued requirements in its 2008 biological opinion that were supposed to help keep Willamette Valley dams from making the situation worse.
But Hernandez found that the Corps missed the mark.
“Far short of moving towards recovery, the Corps is pushing the [Upper Willamette River] Chinook and steelhead even closer to the brink of extinction,” Hernandez wrote. “The record demonstrates that the listed salmonids are in a more precarious condition today than they were at the time NMFS issued the 2008 BiOp.”
The fisheries service’s biological opinion allowed the Corps to harm threatened fish by operating the dams,so long as the Corps took specific steps to increase fish passage and cool water in the reservoirs behind dams, which reach artificially elevated temperatures that are lethal to fish.
But the Corps never took most of those steps, according to court documents, and far exceeded the mortality levels the fisheries service said was allowable. The death rates allowed by the service were substantial — up to 65% of young salmon passing the Detroit and Big Cliff dams on the North Santiam River, up to 68% of juveniles at Fall Creek Dam in the Middle Fork Willamette and up to 32% at Cougar Dam on the McKenzie River. But the Corps blew past those limits, according to court documents.
In slides that were part of its own 2016 PowerPoint presentation, the Corps used data provided by the National Oceanic and Atmospheric Administration estimating that dams in the McKenzie, Santiam, and Middle Fork Willamette subbasins are causing the death of between 71% and 89% of the young salmon and steelhead on their way out to sea.
The Corps argued Congress authorized construction of the dams, knowing they would block passage of fish both on their way to sea and on their way back home to spawn. Still, Hernandez wrote, it’s illegal for a government agency to worsen the existential jeopardy a species faces, even in situations where “baseline conditions” mean the species is struggling to begin with.
The Corps violated the Endangered Species Act by failing to take the steps the fisheries service said was necessary to improve water quality and to help young salmon and steelhead make it past the dams, and therefore worsening the decline of threatened fish, Hernandez found.
Next up will be the phase of the litigation where the parties decide how to remedy the legal violations Hernandez found. The current ruling only assigns liability to the Corps and the fisheries service. Hernandez ordered the parties to suggest a briefing schedule for the remedy phase within the next two weeks.
An order to speed a new fish passage facility currently slated to open at Detroit Dam by 2028 is likely to top the wish list attorney for plaintiffs Northwest Environmental Defense Center, WildEarth Guardians and Native Fish Society.
As their attorney, Lauren Rule, told Hernandez in an earlier hearing, “These species may not have four to five years left. They are in such perilous conditions.”
Meanwhile this spring, the Corps announced a plan to change the allocation of river water during dry years 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 Upper Willamette River Chinook salmon and 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 upriver.
The Corps is already in the midst of determining its role in harming Willamette Valley fish listed under the Endangered Species Act. And the act bars government agencies from taking additional actions that would harm the species under consideration in such determinations. That dispute is the subject of subject of separate litigation, also overseen by Judge Hernandez.
Andrew Missel, attorney for the plaintiffs in that case, told Hernandez in May that the Corps is operating outside the law.
“The Corps broke the law by engaging in this action while at the same time engaging in ESA consultation,” Missel told Hernandez, using the acronym for the Endangered Species Act. “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.”