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Northwest Environmental Defense Center v. United States Army Corps of Engineers

ELR Citation: 50 ELR 20197
Nos. 3:18-cv-00437-HZ, (D. Or., 08/17/2020) (Hernandez, J.)

A district court granted summary judgment for conservation groups in a lawsuit alleging that the Army Corps of Engineers' continued operation and maintenance of a flood control project in the Pacific Northwest violated the ESA. The groups argued the Corps was violating §7(a)(2) by operating and maintaining the project without implementing critical reasonable and prudent alternative (RPA) measures set forth in NMFS' 2008 biological opinion (BiOp), and thus was jeopardizing the continued existence of ESA-listed Chinook and steelhead salmon and adversely modifying the species' critical habitat. The court found that the Corps failed to timely carry out several of the 2008 BiOp's RPA measures critical to improving two primary impediments to the salmonids' continued existence and recovery—lack of safe downstream fish passage and poor water quality—and did not take any alternative actions to avoid jeopardizing the species, thus violating §7(a)(2). The groups also argued the Corps was violating ESA §9 because its operation and maintenance of the project was causing unlawful take of the listed salmonids. The court found that the Corps' operation of the project and configurations it chose for downstream fish passage caused juvenile salmonid mortality in excess of the project's incidental take statement's limits, and thus violated §9. Finally, the groups argued the Corps failed to timely reinitiate formal ESA consultation with NMFS. The court found that the Corps significantly delayed reinitiating consultation and that the delay was a substantial procedural violation of the ESA. It therefore granted the groups' motion for summary judgment.