Win on the Willamette! Judge Issues Injunction to Save Willamette River Chinook Salmon and Winter Steelhead
On September 1, 2021, U.S. District Judge Marco Hernandez issued a final opinion and order directing the U.S. Army Corps of Engineers (Corps) and National Marine Fisheries Service (NMFS) to immediately undertake new measures at dams in the Willamette basin to prevent the extinction of threatened Upper Willamette River wild spring Chinook salmon and winter steelhead.
In the final order, Judge Hernandez found that these measures were necessary because, “[a]s evinced by the listed species’ continuing decline, the Corps’ failure to provide adequate fish passage and mitigate water quality issues is causing substantial, irreparable harm to the salmonids.”
Deep drawdowns require the Corps to lower the elevation of the reservoirs to within 25 feet or less of the dams’ regulating outlets (ROs). As ordered, the Corps must prioritize flows through the ROs during drawdowns, instead of through hydropower turbines, especially during the night when fish have higher rates of migration. Spill operations that prioritize water flow over the top of the dam rather than through turbines can also assist downstream fish passage.
The injunction requires the Corps to conduct a deep drawdown of Cougar Reservoir on the South Fork McKenzie River and spill operations at Foster Dam on the South Fork Santiam River this fall. Further actions will follow, including at dams on the North Santiam River and Middle Fork Willamette. The Corps is also ordered to assess the landslide-risk of conducting a deep drawdown at Lookout Point Reservoir on the Middle Fork Willamette.
“The actions ordered will have immediate positive impacts on threatened salmon and steelhead,” said Jennifer Fairbrother, Conservation Director for the Native Fish Society. “Operational changes are ordered at multiple dams that will improve downstream volitional fish passage and water quality – two of the main actions needed to recover these populations.”
Northwest Environmental Defense Center, WildEarth Guardians, and Native Fish Society—represented by attorneys at Advocates for the West—filed suit in 2018 asking the court to save these iconic fish by compelling the Corps to make immediate operational adjustments to dams on four key tributaries of the Willamette River that block between 40 to 90% of spawning habitat.
The years of delay in action led to rapidly dwindling numbers of spring Chinook salmon and winter steelhead alarming the groups and many Oregonians. In August of 2020, Judge Hernandez ruled in favor of the plaintiffs on the legal merits, acknowledging that the federal agencies’ failure to act led to unlawful “take” of the species and jeopardized the species’ survival and recovery, in violation of the Endangered Species Act. The Court’s ruling yesterday set forth the actions the Federal Defendants must complete to remedy those legal violations.
“We are deeply grateful for this long overdue reprieve for wild Chinook salmon and steelhead in the Willamette River,” said Marlies Wierenga. “ The implementation of this order is a giant step forward to ensure the recovery of these imperiled fish and right the historic injustice to the health of the river.”
In the final order, Judge Hernandez also explained that the Corps’ 1950 report for the Project was “just a ‘general guide’ for management of the dams in the Columbia and Willamette basins, which could be adjusted later as conditions changed or more information about the dams’ effects because known--expressly including impacts to fish.” This affirms that more robust actions at the dams can be initiated to help the listed species than the Corps has claimed it could legally undertake.
“This order comes at a critical moment for wild Willamette River salmon and steelhead,” explained Jonah Sandford, Staff Attorney for the Northwest Environmental Defense Center. “These populations are in real trouble, but the Court’s required measures provide a roadmap for protecting and restoring these fish and this river. This victory is an essential first step to a future where new generations of Oregonians can experience these iconic species.”
The Court has assembled an expert panel, composed of Plaintiff’s experts, two National Marine Fisheries Service biologists, two Corps employees, and two “ad hoc” Federal experts, to draft the implementation details for each of the required actions. In August, the Court ordered that implementation plans be crafted for the Cougar deep drawdown and Foster spill operations in advance of the final opinion and order so that these actions can be immediately initiated with the issuance of the final order. Timelines have been established for the expert panel to complete plans for the remaining actions ordered today.Background: Dams on four key tributaries of the Willamette—the North Santiam, South Santiam, McKenzie, and Middle Fork Willamette rivers—block between 40 to 90 percent of spawning habitat, and their large reservoirs and high head (dam height) make it nearly impossible for small fish to swim downstream while preventing adult fish from returning to critical spawning habitats. Current dam operations create unnatural flows that reduce channel complexity and fish habitat while excess total dissolved gas and unnatural water temperatures impact water quality increasing Chinook egg mortality. The U.S. Army Corps of Engineers, who operates the dams, has delayed many of the requirements from their 2008 Biological Opinion which has led to the near extinction of Upper Willamette River Spring Chinook salmon and winter steelhead.