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NW Fishletter #391, March 4, 2019
 Marion County, Salem Ask Judge To Deny Injunction, Halt Detroit Dam Tower
Marion County and the City of Salem say the U.S. Army Corps of Engineers failed to consider reasonable alternatives when it decided to construct a water temperature control tower at Detroit Dam, and are asking a U.S. District Court judge in Portland to order the agency to stop work on its plan until a new biological opinion is issued for the Willamette Project and other concerns are addressed.
As intervener-defendants in Northwest Environmental Defense Center et al. v. U.S. Army Corps of Engineers et al., the city and county are also asking the judge to dismiss the plaintiffs' case, while making their own case against the Corps in a cross claim filed on Feb. 1.
Meanwhile, in Feb. 25 court filings, the intervenors joined the Corps in asking the judge to deny an injunction sought by plaintiffs.
Filed last year, the Defense Center, WildEarth Guardians and Native Fish Society are asking the judge for an injunction requiring operational changes--including drawdowns and spill--at Willamette Valley Project dams this spring to benefit Chinook and steelhead, listed as threatened under the Endangered Species Act (ESA).
Federal attorneys argued they've already reinitiated Endangered Species Act-consultations, and that a court-ordered injunction would only divert time away from that effort, and usurp the ESA process. Their reply says that science does not support the proposed injunction. "If ordered, the injunctive relieve will provide no benefit to steelhead, potentially devastate a strongly performing Chinook population, and otherwise not have the benefits Plaintiffs speculate could occur," it states.
Federal attorneys say the agencies and the National Marine Fisheries Service reinitiated ESA consultation in April because a large amount of new information has been gained since the 2008 biological opinion was issued. They argue that plaintiffs have not shown irreparable harm from current operations, and note that--unlike the court-ordered spill in National Wildlife Federation et al. v. National Marine Fisheries Service--the Willamette Valley Project's biological opinion has not been found to violate the ESA.
In a separate motion, the federal defendants asked the court to disqualify the declarations of two former federal employees--Richard Domingue and John Johnson--who both worked on the Willamette Valley Project while employed by the National Marine Fisheries Service. The motion says that the Ethics in Government Act permanently bars former government employees from using knowledge gained on the job on behalf of anyone other than the federal government.
As defendant-intervenors, the City of Salem and Marion County filed a separate reply, also opposing the plaintiffs' motion for an injunction, saying that the proposed drawdown of Detroit Dam's reservoir would compromise Salem's water supply for nearly 200,000 customers and threaten human health and safety.
They also say the Corps has already implemented measures at Detroit Dam, and reinitiated consultations for its 2008 biological opinion, which was never invalidated. The court, the reply says, should not force a drawdown without a full review of the reasonable alternatives.
In their cross claim, the county and city say the Corps' plans to drain Detroit Lake for at least two years in order to build a 300-foot water temperature control tower would result in significant negative impacts, including impairing downstream water quality. Having sufficient and consistent water in Detroit Lake is critical to providing the city with drinking water, and would interfere with the city's water rights and impair human health and safety, their claim says.
According to the claim, agriculture and food processing industries would likely relocate without a permanent, stable water supply. Those industries include nearly 800 firms, employing more than 16,000 people with a payroll of nearly $550 million, the claim states.
Recreation and hospitality industries in the county also rely on sufficient water in the lake for boating, swimming and fishing opportunities. Draining the lake would cause about $11 million in business losses per year, it says.
The claim alleges that the Corps did not consider and respond to concerns about the water temperature control tower, and that the National Environmental Policy Act requires the Corps to consider reasonable alternatives.
It also alleges that the Corps is violating the Endangered Species Act by moving forward with plans to build the tower while in consultation with the U.S. Fish and Wildlife Service for a new biological opinion. -K.C. Mehaffey
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