Federal defendants are appealing several U.S. District Court rulings from a lawsuit that resulted in new spill, deep drawdowns and the potential to use water from power pools at hydroelectric dams during critical winter months in order to protect fish in the Willamette Valley Project.
The U.S. Army Corps of Engineers and National Marine Fisheries Service filed a notice of appeal in the 9th U.S. Circuit Court of Appeals on Oct. 29 [21-35918], and the court set a briefing schedule on Nov. 3.
U.S. District Judge Marco Hernandez's Sept. 1 ruling in Northwest Environmental Defense Center et al. v. U.S. Army Corps of Engineers et al. [18-437] rejected the Corps' argument that it does not have the authority to draw reservoirs below the power pool during the critical power production period of October through March, and found that the agency has broad discretion to cut power generation in order to help threatened upper Willamette River Chinook and steelhead.
Several of the 13 dams in the Willamette Valley Project generate electricity—with a combined capacity of just over 400 MW.
In his ruling in favor of plaintiffs Northwest Environmental Defense Center, WildEarth Guardians and Native Fish Society, Hernandez ordered the federal agencies to reinitiate consultation under the Endangered Species Act and issue a new biological opinion for operations at the Willamette Valley Project by Dec. 31, 2024.
He also ordered the formation of a panel of experts, including scientists for defendants and plaintiffs, to develop an interim operations plan.
That panel has submitted dozens of interim operations, many of which are already in place at dams in the Willamette River and its tributaries, Jennifer Fairbrother, campaign and Columbia River regional director of the Native Fish Society, told Water Power West.
She said the Corps is already spilling water at Foster Dam, has initiated a deep drawdown at Cougar Dam and is doing temperature control at Detroit Dam to try to lower the river this fall.
Fairbrother provided a summary of actions required at the dams so far, which involved Cougar, Foster, Green Peter, Detroit, Big Cliff, Fall Creek, Lookout Point and Dexter dams.
Whether or not those operations will continue will depend on whether the federal agencies file a motion to halt the injunction pending the appeal, or if they are only appealing the decision, she said, adding, "I certainly hope that the injunction remains in effect throughout any appeal, because the fish don't have another two years for this to work its way through the court to get the relief they're getting right now," she said.
Corps spokesman Tom Conning said in an email to Water Power West that his agency is coordinating the appeal with the Department of Justice, which will make the final decisions.
The notice of appeal states that the agencies are challenging five of the judge's orders issued between August 2020 and September 2021, and all subsequent orders. They begin with an opinion and order on Aug. 17, 2020, where Hernandez granted the plaintiffs' motion for summary judgment, and denied cross-motions for summary judgment by defendants. In that opinion, Hernandez found that the Corps is violating the ESA by failing to meet conditions of a 2008 BiOp after missing numerous deadlines outlined in the BiOp.
The agencies are also appealing a July 14, 2021, draft order finding that the Corps can use deep drawdowns and water from its power pool to help fish in the Willamette Basin, and a Sept. 1 final order along with interim injunctive measures that included a deep drawdown at Cougar Dam and additional spill at Foster Dam.
In court filings, BPA said that based on historical generation over the past two decades, the ruling would result in an average lost generation of 12.2 MW at Cougar Dam. The drawdown began on Oct. 1 and is expected to continue until about Jan. 15. That drawdown is drafting the reservoir to within 25 feet or less of the regulating outlets and is expected to result in a 60- to 95-percent reduction in power generation during the winter power-production period.
The 9th U.S. Circuit Court of Appeals set a fast-track briefing schedule, with opening briefs and excerpts of the record due no later than Nov. 29 and answering briefs due Dec. 27 or within 28 days of the opening brief.