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NW Fishletter #392, April 1, 2019

[12] Hearing On Willamette Injunction Set For April 4

A federal judge in Oregon will hear oral arguments on April 4 to decide whether to order a preliminary injunction requiring immediate operational changes--including spill and drawdowns--at Willamette Basin hydroelectric projects to help spring Chinook and steelhead.

U.S. District Judge Marco Hernandez is scheduled to hear arguments in Northwest Environmental Defense Center et al. v. U.S. Army Corps of Engineers, et al.

The plaintiffs--Northwest Environmental Defense Center, WildEarth Guardians and the Native Fish Society--asked the court in November to grant a preliminary injunction that would include a two- to four-week spring spill at Lookout Point Dam, and drawdowns in winter and spring at four dams including Lookout Point to help juvenile fish migrate downstream.

Federal attorneys representing the Corps said in a February response that science does not support the proposed operations, which would provide no benefit to steelhead and could devastate a "strongly performing Chinook population."

The Corps argued that it has already reinitiated consultations with the National Marine Fisheries Service for a new biological opinion, and that an injunction would divert time away from that effort and usurp the Endangered Species Act process.

In a reply brief filed on March 19, the plaintiffs say that the Corps' response is "emblematic" of how the agency has treated its responsibility to protect salmon and steelhead throughout the Columbia and Willamette basins.

"Rather than making changes to dam operations that would immediately benefit the species, the Corps resists such changes by claiming that it needs to undertake years of further analysis--until this Court has ordered it to take immediate actions," the reply said.

"This Court should order such actions now to reduce the ongoing and continuous harm from operation of the Willamette Project to threatened salmon and steelhead, as it has with the Columbia River dams, because waiting for some future, speculative actions could well be too late for these declining species," it continued.

The reply also said the government's declaration relies on a Corps biologist who makes incorrect and flawed assumptions about the proposed operational changes, rather than biologists from the National Marine Fisheries Service who worked directly on the Willamette Project.

Also at issue is whether declarations by two former National Marine Fisheries Service--filed by plaintiffs in the case--should be disqualified. Federal defendants say their testimony violates the Ethics in Government Act, while plaintiffs say the act doesn't apply when it helps further public interest.

The city of Salem and Marion County are intervenor-defendants in the case, each with an interest in possible drawdowns at Detroit Dam, which supplies water to Salem. -K.C. Mehaffey

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