Lawsuit Challenges Eugene Water and Electric Board for Violating Endangered Species Act
Advocates Sue to Address Harm to Bull Trout and Chinook Salmon
Media Contacts:
Bethany Cotton, Cascadia Wildlands, bethany@cascwild.org 503.327.4923
John Persell, Oregon Wild, jp@oregonwild.org 503.896.6472
Jennifer Fairbrother, Native Fish Society, jennifer@nativefishsociety.org 541.602.0696
Hannah Goldblatt, Advocates for the West, hgoldblatt@advocateswest.org 503.506.5131
Nicole Funaro, Public Justice, nfunaro@publicjustice.net, 203.435.1722
Lindsey Hutchinson, Willamette Riverkeeper, lindsey@willametteriverkeeper.org 503.223.6418
Advocates for the West, Public Justice and our conservation partners filed suit against the Eugene Water and Electric Board (EWEB) alleging ongoing violations of the Endangered Species Act (ESA). For over sixteen years, the public utility has been out of legal compliance with federal requirements to provide proper fish passage for ESA-listed Chinook salmon and bull trout at the Carmen-Smith Hydroelectric Project and Trail Bridge Dam on Oregon’s famed McKenzie River.
EWEB’s failure to provide adequate fish passage has resulted in killing and injuring Chinook salmon and bull trout as the fish try to migrate up and downriver, a violation of the ESA’s prohibition on “take”—including harming, harassing, wounding, and killing—of listed species. EWEB’s inaction also prevents the fish from accessing important spawning, rearing, and feeding areas.
“EWEB is blatantly disregarding federal law,” said Hannah Goldblatt, Staff Attorney at Advocates for the West. “Short of a court requiring it to do so, it appears the public utility will continue to delay its commitments to complete adequate fish passage, at the expense of threatened Chinook salmon and bull trout.”
“For nearly two decades, Upper Willamette River Chinook salmon and bull trout have paid the price for EWEB’s chronic non-compliance,” said Peter Jensen, an attorney with Cascadia Wildlands. “Accountability for the serious harm to protected fish species is needed to correct course and ensure the health of the river and persistence of these iconic fish species.”
“The McKenzie River and the threatened salmon and trout that call it home belong to all of us, but for years EWEB has failed to keep its promise to help fish get around Trail Bridge Dam to spawn,” said John Persell, Staff Attorney for Oregon Wild. “We are going to make them fulfill that promise and protect the McKenzie.”
“Salmon and bull trout have an extraordinary capacity to recover when we simply fulfill our responsibility to provide effective and safe fish passage to and from high-quality habitat like we have in the upper McKenzie River,” said Jennifer Fairbrother, Legislative and Policy Director for the Native Fish Society.
Attorneys from Advocates for the West, Public Justice, Cascadia Wildlands, and Willamette Riverkeeper are representing plaintiffs Cascadia Wildlands, Willamette Riverkeeper, Native Fish Society, and Oregon Wild in the case.
Background
Tribal entities and regional conservation groups have long engaged in advocating for fish passage at the Carmen-Smith Hydroelectric Project and Trail Bridge Dam. In 2008, EWEB filed a settlement agreement with the Federal Energy Regulatory Commission (FERC), conservation organizations, and Tribes in which EWEB agreed to construct new state-of-the-art volitional fish passage measures (a fish ladder) to allow fish access to miles of pristine river habitat above the Carmen-Smith Project. This never occurred.
In 2018 a new settlement agreement was reached with FERC, the National Marine Fisheries Service, and the Fish and Wildlife Service to implement inferior trap-and-haul facilities in lieu of volitional passage within three years. These lessened standards prompted Cascadia Wildlands and Oregon Wild to leave the settlement.
At Issue
EWEB’s dam license at the Carmen-Smith Hydroelectric Project (issued by FERC) is conditioned on the construction of fish passage at Trail Bridge Dam. EWEB initially agreed to install a fish ladder at the dam, but later scrapped this plan for an inferior proposal for a trap-and-haul system based on an updated economic analysis. The National Marine Fisheries Service and U.S. Fish and Wildlife Service consented to the less effective plan largely because EWEB promised to build that facility quickly. EWEB then missed multiple deadlines and has yet to even break ground on a trap-and-haul facility that was required to be completed in 2022. Moreover, EWEB has publicly admitted that its temporary mitigation efforts have either entirely or nearly completely failed.
In 2023, on-the-record statements from a former EWEB employee-turned-whistleblower came to light, alleging that EWEB never intended to implement fish passage and that its excuses for delays were not valid. Both the National Marine Fisheries Service and the Fish and Wildlife Service then withdrew from the 2018 joint settlement agreement with EWEB and other stakeholders. The expert fish agencies also notified FERC that EWEB could no longer rely on their 2018 Biological Opinions and Incidental Take Statements without reinitiating consultation under the ESA.
The McKenzie River Chinook salmon subpopulation, long seen as a stronghold for the threatened Upper Willamette River Chinook population, has further declined over the past 16 years with known salmon deaths occurring at the Trail Bridge Dam due to the lack of passage.
In addition to the ongoing harm caused to Chinook salmon and bull trout, the myriad delays have likely increased costs to ratepayers and the overall expense of bringing the project into compliance with federal law. Cascadia Wildlands brought their concerns to EWEB’s board of commissioners in May 2024 in both oral and detailed written comments.
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Cascadia Wildlands works on behalf of its over 15,000 members and supporters to defend and restore Cascadia’s wild ecosystems in the forests, in the courts, and in the streets.
Oregon Wild represents 20,000 members and supporters who share our mission to protect and restore Oregon’s wildlands, wildlife, and water as an enduring legacy. Our goal is to protect areas that remain intact while striving to restore areas that have been degraded.
Willamette Riverkeeper is a 501(c)(3) non-profit organization founded in 1996 with thousands of members in Oregon and the Pacific Northwest. Willamette Riverkeeper focuses on protecting and restoring the resources of the Willamette River Basin in Oregon and works on programs and projects ranging from the Clean Water Act compliance and river education to Superfund cleanup and restoring habitat.
The Native Fish Society is a conservation nonprofit with a mission to restore abundant wild fish, free-flowing rivers, and thriving local communities across Oregon and the Pacific Northwest.
Advocates for the West is a non-profit, public interest environmental law firm that works to defend public lands, water, fish, and wildlife throughout the American West.
Public Justice takes on the biggest systemic threats to justice of our time – abusive corporate power and predatory practices, the assault on civil rights and liberties, and the destruction of the earth’s sustainability. We connect high-impact litigation with strategic communications and the strength of our partnerships to fight these abusive and discriminatory systems and win social and economic justice. For more information, visit www.PublicJustice.net.