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NW Fishletter #384, August 1, 2018

[9] Salem Files As Intervenor In Willamette River Suit, Plaintiffs Want Limits

The City of Salem, Ore. is asking a federal judge to be added as a defendant or intervenor in a lawsuit against two federal agencies regarding dams on the Willamette River, but the plaintiffs in the lawsuit say the city should be limited to issues related to Detroit Dam, which the city uses for its water supply.

Filed in U.S. District Court on March 13 by three environmental groups, the suit claims the U.S. Army Corps of Engineers and National Marine Fisheries Service should be required to reinitiate Endangered Species Act (ESA) consultations for the Willamette Valley Project.

In the lawsuit, Northwest Environmental Defense Center et. al v. U.S. Army Corps of Engineers et. al, plaintiffs claim the federal agencies are violating the ESA by failing to redo a Biological Opinion currently in place through 2023. It claims dams block habitat for ESA-threatened Chinook salmon and steelhead in the upper Willamette River and tributaries, and the Corps has missed mitigation deadlines outlined in the Biological Opinion.

In its motion filed June 25, the City of Salem says it has held a municipal water right for 75 years in the north Santiam River, which is its primary source of drinking water for more than 190,000 customers and three wholesale customers, including the City of Turner, Suburban East Salem Water District and Orchard Heights Water Association, the motion says. The city says that if flows drop below a minimum threshold, its intake will not function properly and it will not be able to operate its water treatment facility. Additionally, the motion says, the city is concerned the proposal will impair downstream water quality by releasing sediment, contamination and warm water from Detroit Lake.

Salem argues that the Corps has initiated public scoping on its preliminary plans to construct a 300-foot-high water temperature control tower and completely drain Detroit Lake for two or more years. "Draining Detroit Lake, even temporarily, would likely obliterate the city's drinking water supply," it says. The city says that, through the National Environmental Policy Act, the Corps will issue a draft Environmental Impact Statement with reasonable alternatives and a requirement for public input, which could influence the final decision.

Through the lawsuit, the city claims, the plaintiffs seek to "bypass the public process," preventing the city from seeking alternatives. In addition, the city argues that the plaintiffs and the Corps could attempt to settle the lawsuit without the city's input.

Plaintiffs in the case filed a response on July 9, stating they do not oppose the motion as long as the court limits the city's participation to subjects raised in the city's request. Defendants also filed a reply taking no position.

In their reply brief, the plaintiffs--Northwest Environmental Defense Center, WildEarth Guardians and Native Fish Society--say Salem has very narrow interests that relate only to Detroit Dam on the North Santiam River, one of 13 dams on the four rivers at issue in the case.

Courts routinely impose limitations on proposed intervenors, the reply states, and the city should be allowed to participate "solely for the purpose of addressing issues related to Detroit Dam and water rights on the North Santiam River with respect to both the merits of Plaintiffs' legal claims and any remedial relief related to those claims."

The reply also seeks similar limitations regarding the city's participation in settlement discussions.

Also according to the brief, the city inaccurately claimed in its motion that the plaintiffs are seeking to "bypass" the National Environmental Policy Act. The plaintiffs maintain that the court could require the Corps to re-engage in Endangered Species Act consultations and also comply with National Environmental Policy Act requirements with environmental alternatives for fish passage and temperature control at Detroit Dam.

Salem responded in a court brief that its participation should not be limited, and has asked the court to hear oral arguments on their request. -K.C. Mehaffey

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Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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