What does it look like when a judge takes over?
March 3, 2022 | View PDF
Interesting things are happening in Oregon’s Willamette River basin when it comes to salmon and steelhead recovery. Maybe even a little overlooked for their significance. An Oregon federal judge is running the river, issuing significant directions for how federal dams and reservoirs should be operated to benefit fish.
And that’s what happens when populations of naturally producing salmon and steelhead listed under the Endangered Species Act start approaching extinction. Entities worried about the decline of the fish sue. And they win.
Then what? In the Columbia/Snake River basin, the 20 years of legal battles over the federal hydropower system’s impacts on salmon and steelhead have typically led to judges ordering “remands.” Kick it back to the agencies for a do-over, and here we go again.
Not so for the mighty Willamette River, the Columbia’s largest tributary west of the Snake River. A judge is telling the Army Corps of Engineers it needs to take action to assist faltering salmon and steelhead NOW, not in some distant future. And with the help of an advisory panel, orders are being issued and followed now, not later.
The Willamette is a troubled, polluted river winding south-north through urban Oregon, flowing into the Columbia at Portland. Yet, its tributaries include beautiful salmon/steelhead bearing rivers, with excellent high country salmonid habitat above dams and reservoirs.
Three species of wild Willamette River fish are listed as threatened under the federal Endangered Species Act — bull trout, Upper Willamette River spring chinook salmon, and Upper Willamette River winter steelhead. A series of 13 Willamette Project dams block access to upstream spawning grounds.
In August 2020, Judge Marco Hernandez, Chief Judge of the U.S. District Court of Oregon, ruled the Corps was not moving fast enough to ensure survival and recovery of the wild spring chinook and wild winter steelhead. “Far short of moving towards recovery, the Corps is pushing the UWR Chinook and steelhead even closer to the brink of extinction. The record demonstrates that the listed salmonids are in a more precarious condition today than they were at the time NMFS issued the 2008 BiOp.”
The conservation groups who sued the Corps were alarmed by the rapidly dwindling numbers of salmon and steelhead and the ongoing delays in mitigating action. The court ruled in favor of the groups on all of their claims.
And now the judge is playing a substantial role in how these federal dams are operated. Already he has ordered:
• Deep reservoir drawdowns at Cougar Dam on the South Fork of the McKenzie River and at Fall Creek Dam on the Middle Fork Willamette to aid downstream migration of juvenile salmon and steelhead;
• Spring spill at Foster Dam on the South Santiam River to aid juvenile downstream migration;
• Adult outplanting, spring spill, and juvenile passage at Green Peter Dam on the Middle Fork Santiam River;
• Spring spill and the use of regulating outlets at Lookout Point Dam on the Middle Fork Willamette River;
• Use of temperature control outlets at Detroit and Big Cliff dams on the North Fork Santiam River.
That’s no small potatoes. And it wouldn’t be happening without a judge.
In his 2020 ruling, Hernandez was blunt. “The reason the dams adversely affect salmonid migration is straightforward: Significant portions of the UWR Chinook and steelhead spawning habitat are located above the (Willamette Valley Projects) dams and salmonids cannot swim past dams, at least without operational and structural measures to facilitate such passage. Approximately 70% of historic UWR Chinook and 33% of UWR steelhead spawning, incubation, and rearing habitat in the North Santiam River and South Santiam River subbasins is blocked by dams. Approximately 16% of the historic UWR Chinook habitat in the McKenzie River subbasin is blocked by dams. Over 90% of the historic habitat for UWR Chinook has been blocked by dams in the Middle Fork Willamette River subbasin.”
“The dams also adversely affect water quality, quantity, and temperature below the dams, and change the nature of the waterways above the dams in a variety of ways that can affect the ability of juvenile salmon to develop and survive downstream migration and the ability of adult salmonids to migrate upstream and spawn,” Hernandez wrote in his opinion.
The Willamette situation harkens back to another years-long legal imbroglio that forced judges to issue orders to save a Northwest species not being helped in other ways.
Remember the spotted owl?
The federal forests of the Pacific Northwest contain the last remaining pre-settlement “old growth” forests in the lower 48. The northern spotted owl was designated by the Forest Service as a management indicator species for this habitat. The old growth areas’ streams are utilized by imperiled salmon runs. Preserving the old growth forests became the focal effort of environmental and recreational interests.
On the other side, the percentage of timber harvested from federal as opposed to state and private lands was comparatively large in these areas, creating dependency in the local economy on its availability. The stage was set for major conflict.
Eventually, judges ordered the Forest Service to halt further timber sales in spotted owl habitat in Washington, Oregon, and Northern California until standards and guidelines ensuring the owl’s viability were in place.
Until the Northwest Forest Plan was finally approved by the courts, judges were running the woods.
Parties to the Columbia/Snake River basin long-running salmon/steelhead litigation are now in talks in Oregon District Court Judge Michael Simon’s court, aiming for some kind of settlement this summer.
If litigants and regional parties cannot agree on a plan to keep certain populations of ESA-listed salmon and steelhead from going functionally extinct, will a judge someday soon be ordering changes to the operations of the Columbia/Snake federal hydropower system, similar to what Hernandez is doing in the Willamette? Will a judge be running the river?
That’s a likely outcome. Hernandez was done with the foot-dragging in the Willamette. Not hard to imagine another judge feeling the same way about the Columbia/Snake River.
Bill Crampton, [email protected]