Three environmental groups whose lawsuit prompted the U.S. Army Corps of Engineers and National Marine Fisheries Service to reinitiate Endangered Species Act consultations for the Willamette Valley Project are now asking a federal judge to grant their original claims for relief in a summary judgment.
The Northwest Environmental Defense Center, WildEarth Guardians and Native Fish Society say even though the federal agencies have begun new ESA consultations and later unexpectedly decided to prepare a new EIS for the 13 Willamette dams and reservoirs, more immediate action is needed to adequately protect upper Willamette River Chinook and steelhead.
Oral arguments for the summary judgment motion in Northwest Environmental Defense Center et al. v. U.S. Army Corps of Engineers et al. [18-437] are scheduled for Feb. 19, 2020.
In June, U.S. District Judge Marco Hernandez denied the groups’ request for a preliminary injunction to force interim drawdowns and spills at some of the projects. He also found that the Corps has adversely affected the threatened salmon and steelhead by delaying several measures required in a 2008 BiOp (CU No. 1907 ).
In their Sept. 25 motion, the groups claim that long-term passage structures required in the BiOp are well behind schedule, and almost no operational measures are occurring to improve downstream passage while environmental analyses are ongoing.
“The extensive record in this case shows that, while the Corps has conducted studies and written countless reports, proposals, PowerPoint presentations, and other documents over the last eleven years, it has continued to drag its feet on actually implementing measures to address fish passage and water quality—either failing to complete them at all or delaying them well past their [reasonable and prudent alternative] deadlines,” their motion states.
Adult and juvenile fish passage and water quality improvements in temperature and total dissolved gas are critical parts of the BiOp, the groups said.
The BiOp required the Corps to upgrade fish collection facilities to improve the survival of trapping and hauling adults, and expected the North Santiam, Foster, Dexter and Fall Creek facilities to be upgraded by March 2013, 2014, 2015 and 2016 respectively. It was called an “essential first step” to improving upstream migration. Downstream juvenile migration also included specific deadlines for operational plans and the construction of juvenile fish passage facilities at Cougar Dam by 2014, Lookout Point Dam by 2021, and Detroit Dam by 2023, the filing said.
Although late, significant work has been completed at some of the projects, while planning is underway at others.
In April 2018, the Corps completed a new adult fish collection facility at Fall Creek Dam, which was commemorated during a ceremony this summer to mark the 50th anniversary of the Willamette Valley Project’s completion.
The Corps notes that many of the Willamette Valley Project dams were built for flood control, and said that together, they have prevented more than $25 billion in flood damages. Nine of the projects also generate electricity and have a total capacity of just over 400 MW.
The Corps is also in the midst of its environmental assessment for the Cougar Dam downstream passage project. In May, the agency released a draft EIS for a water temperature control tower and fish collection structure at Detroit Dam, abandoning its original plan for a two-year drawdown with a preferred alternative that would instead require underwater construction (CU No. 1904 ).
In addition, the Corps decided to prepare a new EIS for all 13 of its Willamette Valley dams and reservoirs (CU No. 1896 ).
A Sept. 24 story by the Northwest Power and Conservation Council on a new collection facility at Minto on the North Fork Santiam River notes that fish passage is being rebuilt at some of the Willamette Valley dams, and built for the first times at others as a result of the 2008 BiOp. These fish passage projects are often difficult, especially for juvenile fish, because of their extreme height.
The plans are also costly. New fish collection facility at Minto cost about $30 million, and a new water temperature control tower and fish collection facility at Detroit Dam are expected to cost from $350 million to $500 million, the NWPCC reports. It says budgetary constraints may further delay the Detroit Dam project.
Plaintiffs, however, say cost should not be considered by the court.
“[T]he Corps has substantial management discretion over its dams and must operate them in compliance with the ESA’s no-jeopardy mandate regardless of the expense or burden," their motion for summary judgment says. For instance, the Corps can take actions to benefit fish even at the expense of power production.”
In addition to seeking reinitiation of ESA consultation, which is already underway, relief sought by plaintiffs in their original complaint included “temporary, preliminary or permanent” injunctions to prevent further harm to ESA-listed fish. They argue that ongoing operations at the Willamette Valley Project dams continue to violate the ESA by impeding passage to and from important habitat upstream, and degrading water quality below the dams.
“Plaintiffs are requesting that the Court order protective measures be put in place pending the completion of consultation,” the motion says.