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NW Fishletter #395, July 1, 2019
 Judge Declines To Order Willamette Drawdowns, Spills
A federal judge has denied a request from three environmental groups to order additional drawdowns and spills at Willamette Valley projects, saying they were unable to show that irreparable harm to Endangered Species Act-listed fish would occur without a preliminary injunction.
Plaintiffs in Northwest Environmental Defense Center, et al. v. U.S. Army Corps of Engineers, et al. were seeking a preliminary injunction to force several operational changes at dams in the Willamette Project while the lawsuit continues, including a two- to four-week spill at Lookout Point Dam and drawdowns in winter and spring at four dams to help juvenile fish migrate downstream.
In a June 5 ruling, U.S. District Judge Marco Hernandez wrote that the plaintiffs--including the Defense Center, WildEarth Guardians and the Native Fish Society--needed to establish a "definitive threat of future harm" to upper Willamette River Chinook and steelhead would occur during the course of the court proceedings without the operational changes they sought. The record "falls short of establishing that the species will suffer irreparable harm during the pendency of these proceedings," he wrote.
The conservation groups did not need to show "extinction-level" harm, he wrote, but had to demonstrate that future survival, recovery, or critical habitat were in jeopardy. "Plaintiffs may not obtain a preliminary injunction unless they can show that irreparable harm is likely to result in the absence of the injunction," he wrote.
However, the environmental groups did meet other required prongs needed in a preliminary injunction. "At this early stage of the proceedings, Plaintiffs have compiled a compelling record that indicates (1) the Corps has delayed the implementation of several important [Reasonable and Prudent Alternative] measures; (2) the condition of the [Upper Willamette River] Chinook and steelhead continues to deteriorate; and (3) it is likely that the delays in the implementation of the RPA measures [have] had a material adverse effect on the listed salmonids and their critical habitat," the judge wrote.
The deadlines that the Corps missed so far include water quality and fish passage measures at Foster and Green Peter dams in the South Santiam subbasin; interim fish passage measures at Cougar Dam in the McKenzie subbasin; implementation of deep drawdowns of the Fall Creek Dam reservoir; and initial water quality measures and additional fish passage measures at Lookout Point, Dexter, Hills Creek and Fall Creek dams in the Middle Fork Willamette subbasin.
The Corps is also expected to miss the December 2021 deadline to complete construction of a downstream fish passage structure at Lookout Point Dam, according to the judge's order.
Hernandez wrote that although federal defendants are implementing several measures, plaintiffs are "largely correct that many of the most significant actions necessary to improve fish passage and water quality conditions have been substantially delayed and/or not yet completed."
He found that while the Willamette Project is likely not the only factor contributing to the decline in upper Willamette River Chinook and steelhead, their condition continues to decline, and the Corps' failure to implement measures in the 2008 biological opinion has been a "significant factor" in that decline.
Hernandez also denied the Corps' motion to disqualify and exclude the expert testimony of two former National Marine Fisheries Service scientists who worked on the 2008 biological opinion for operating the Willamette Project. Richard Domingue and John Johnson had testified on behalf of the plaintiffs, and federal attorneys claimed that was a violation of the Ethics in Government Act. Hernandez found the relevant provision in the act is intended to address corruption concerns about former government employees using knowledge of specific matters they obtained during their government service to benefit other parties.
"Excluding it would neither serve the purpose of the Act nor the public interest," the judge ruled.
Their testimony was considered, but it did not support a finding of irreparable harm, the judge wrote in his June 5 decision. -K.C. Mehaffey
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