Nw. Envtl. Def. Ctr. v. U.S. Army Corps of Eng'rs

• Decision Date: 15 August 2020
• Docket Number: No. 3:18-cv-00437-HZ,3:18-cv-00437-HZ
• Parties: NORTHWEST ENVIRONMENTAL DEFENSE CENTER, WildEarth Guardians, and Native Fish Society, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS and National Marine Fisheries Service, Defendants. City of Salem and Marion County, Intervenor-Defendants.
• Court: U.S. District Court — District of Oregon

479 F.Supp.3d 1003

NORTHWEST ENVIRONMENTAL DEFENSE CENTER, WildEarth Guardians, and Native Fish Society, Plaintiffs,

v.UNITED STATES ARMY CORPS OF ENGINEERS and National Marine Fisheries Service, Defendants.

City of Salem and Marion County, Intervenor-Defendants.

No. 3:18-cv-00437-HZ

United States District Court, D. Oregon.

Signed August 15, 2020

Filed August 17, 2020

Elizabeth Hunter Potter, Lauren M. Rule, Advocates for the West, 3701 SE Milwaukie Avenue, Suite B, Portland, OR 97202, Attorneys for Plaintiffs.

Kaitlyn Poirier, United States Department of Justice, Environment & Natural Resources Division, Wildlife and Marine Resources Section, Ben Franklin Station, P.O. Box 7611, Washington, DC 20044, Michael R. Eitel, United States Department of Justice, Environment & Natural Resources Division, 999 18th Street, South Terrace, Suite 302, Denver, CO 80202, Attorneys for Defendants.

Ashley L. Vulin, Lawrence B. Burke, Robert E. Miller, Davis Wright Tremaine, LLP, 1300 SW Fifth Avenue, Suite 2400, Portland, OR 97201, Jane E. Vetto, Marion County Counsel, 555 Court Street NE, Suite 5242, Salem, OR 97309, Thomas V. Cupani, 555 Liberty Street SE, Room 205, Salem, OR 97301, Attorneys for Intervenor-Defendants.

OPINION & ORDER

HERNÁNDEZ, District Judge:

Currently before the Court are Plaintiffs Northwest Environmental Defense Center, WildEarth Guardians, and Native Fish Society, and Defendants the United States Army Corps of Engineers ("the Corps") and National Marine Fisheries Service ("NMFS")’s cross motions for summary judgment. For the following reasons, the Court GRANTS Plaintiffs’ Motion for Summary Judgment [ECF 96] and DENIES Defendants’ Motion for Summary Judgment [ECF 101].

BACKGROUND

Plaintiffs initiated this action on March 13, 2018, bringing claims against Defendants for violations of the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA"), principally on the basis that Defendants failed to reinitiate consultation under the ESA after the Corps did not timely implement various mitigation measures set out in a 2008 NMFS biological opinion ("BiOp"). The 2008 BiOp assessed the effect that the Corps’ operation and maintenance of the Willamette River Basin Flood Control Project ("WVP") has on Upper Willamette River Chinook salmon ("UWR Chinook") and steelhead ("UWR steelhead").

The WVP is a large network of 13 dams and related facilities on various tributaries in the Willamette River basin. The WVP was constructed beginning in the 1940s to provide flood control, municipal and agricultural water supply, recreation, and hydroelectric power to the Willamette Valley. The dams relevant to this case are in the Middle Fork Willamette River, McKenzie River, South Santiam River, and North Santiam River subbasins. Dexter, Lookout Point, Hills Creek, and Fall Creek dams are in the Middle Fork Willamette River subbasin; Cougar and Blue River dams are in the McKenzie River subbasin; Green Peter and Foster dams are in the South Santiam River subbasin; and Detroit and Big Cliff dams are in the North Santiam River subbasin.

Both UWR Chinook and steelhead are anadromous salmonids, meaning they are born in freshwater—typically in upstream tributaries—before migrating through river systems out to saltwater where they mature into adults before ultimately returning to their freshwater habitat to spawn and to complete their life cycle. The UWR Chinook and steelhead were listed as "threatened" under the ESA in 1999.

As a result of the listing of UWR Chinook and steelhead, the Corps, the Bonneville Power Administration, and the United States Bureau of Reclamation began consultation with NMFS in 2000 to determine whether the continued operation of the WVP was likely to jeopardize the continued existence of the listed salmonids and/or adversely modify the salmonids’ critical habitat.¹ Due to numerous delays, NMFS did not complete the consultation process and issue its BiOp until 2008. NMFS concluded in the 2008 BiOp that the continued operation of the WVP as proposed by the Corps was likely to jeopardize the continued existence of the UWR Chinook and steelhead and would likely destroy and/or adversely modify the species’ critical habitat. The 2008 BiOp found the dams harmed the listed salmonids by, among other things, blocking downstream passage of juvenile salmonids, interfering with upstream migration of salmonids returning to their spawning grounds, and harming water quality and quantity downstream from the dams.

The reason the dams adversely affect salmonid migration is straightforward: Significant portions of the UWR Chinook and steelhead spawning habitat are located above the WVP 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. Third Decl. of Kirk Schroeder ("Schroeder Decl.") ¶¶ 24, 26, ECF 97. Approximately 16% of historic UWR Chinook habitat in the McKenzie River subbasin is blocked by dams. BiOp 4.3-10.² Over 90% of the historic habitat for UWR Chinook has been blocked by dams in the Middle Fork Willamette River subbasin. Schroeder Decl. ¶ 29; BiOp 4.2-36.

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. For example, spill from the dams can cause high levels of dissolved gas in the downstream water, which can adversely affect both juvenile downstream-migrating salmonids and upstream-migrating adult salmonids. See, e.g. , BiOp 4.1-11. Moreover, because water downstream from the dams is drawn from above-dam reservoirs, downstream water temperatures can be unnaturally warm during critical periods of the year. See, e.g. , BiOp 4.1-9. The reservoirs can also affect juvenile salmonids (the progeny of adult fish trapped, hauled, and replanted above the dams) because the unnaturally slow water movement in the reservoirs can expose the juvenile fish to greater levels of predation, parasites, disease, and poor water quality than they would be exposed to under natural conditions. See, e.g. , Schroeder Decl. ¶ 20.

As part of the 2008 BiOp, NMFS issued a Reasonable and Prudent Alternative ("RPA"), in which it set out measures that the Corps and other stakeholders needed to carry out in order to allow for the continued operation of the WVP without causing jeopardy to the listed species or adverse modification of their critical habitat.

As discussed in more detail below, the actions set out in the RPA included structural modifications and operational changes at the dams and other WVP facilities designed to mitigate many of the above adverse effects on the UWR salmonids. The BiOp also set out various deadlines by which the Corps needed to carry out the RPA measures. Together with the 2008 BiOp, NMFS also issued an Incidental Take Statement ("ITS") that authorized the incidental take of listed species pursuant to the terms and conditions set out in the ITS. The BiOp and ITS were intended to last through 2023.

Although the nature and extent of the delays are matters of dispute between the parties, it is undisputed that significant RPA measures were never carried out, some were delayed, some have not yet occurred, and some will not occur in time to meet future deadlines. Meanwhile, UWR Chinook and steelhead populations continue to decline, although both species remain listed as "threatened" after a 2016 NMFS status review.

Shortly after Plaintiffs filed this action, the Corps and NMFS reinitiated formal ESA consultation in April 2018. Defendants currently estimate they will complete the BiOp from the reinitiated consultation by the end of 2022.

On June 25, 2018, the City of Salem filed a Motion to Intervene [ECF 7] as a Defendant on the basis that this case is likely to have an impact on the City's water supply. The Court granted that Motion on July 30, 2018. Order, ECF 15. Similarly, on September 6, 2018, Marion County filed a Motion to Intervene [ECF 18] on the basis that this case is likely to have an impact on the County's economic interests. The Court granted that Motion on September 25, 2018. Order, ECF 26. The interests of the City of Salem and Marion County focus on the effect this litigation may have on operational and structural changes at Detroit Dam.

On November 30, 2018, Plaintiffs filed a Motion for Preliminary Injunction [ECF 36], in which they sought an order directing the Corps to implement various operational measures intended to address downstream fish passage and water quality issues. The Court denied Plaintiffs’ motion on June 5, 2019 because Plaintiffs failed to demonstrate they would suffer irreparable harm during the pendency of these proceedings absent preliminary relief. See Op. & Order, ECF 84.

On September 25, 2019, Plaintiffs filed their Motion for Summary Judgment [ECF 96]. Intervenor-Defendants filed a Response in opposition to Plaintiffs’ motion on October 16, 2019 [ECF 100]. On November 6, 2019, Defendants filed their Motion for Summary Judgment [ECF 101]. As stipulated by the parties [ECF 83], this case has been bifurcated into a liability phase and a remedy phase. The instant motions address only the issue of Defendants’ liability.³

In Claim One, Plaintiffs allege the Corps is violating the ESA's substantive and procedural requirements. First, Plaintiffs claim the Corps is violating Section 7(a)(2) of the ESA ( 16 U.S.C. § 1536(a)(2) ) on the basis that its failure to fully and timely implement the RPA measures is jeopardizing the UWR Chinook and steelhead and is causing adverse modification to the species’ critical habitat. Second, Plaintiffs allege the Corps is causing...