The U.S. Army Corps of Engineers claims environmentalists cannot compel a federal judge to “censor” the agency’s recommendations to Congress for allocating Willamette reservoir water.
More than 327,000 acre-feet of water behind 13 dams in the Willamette Basin would be allocated for irrigation under the agency’s recommendations, compared to the currently contracted 75,000 acre-feet.
The recommendations would also allocate nearly 160,000 acre-feet of water for municipal and industrial uses, and 1.1 million acre-feet for in-stream environmental purposes such as fish habitat.
Earlier this year, several environmental groups filed a complaint seeking to rescind the agency’s recommendations to Congress, arguing the government must first analyze the overall effect of dam operations on endangered fish species.
During oral arguments on May 26, the Corps urged U.S. District Judge Marco Hernandez against issuing an injunction to block the recommendations, which is being sought by Waterwatch of Oregon, Northwest Environmental Defense Center and Wildearth Guardians.
“It’s really Congress’ job to look at these and decide whether Congress has got what it wanted,” said Mike Eitel, the federal government’s attorney.
According to the Corps, a federal court cannot stop the government’s executive branch from communicating with Congress, as such an injunction would contravene the executive’s constitutional authority and also hinder legislative functions.
“The plaintiffs are asking the court to interfere with that process,” Eitel said.
Such an order would violate the U.S. Constitution’s “separation of powers” among the branches of government and exceed the court’s constitutional role, the agency claims.
“This court does not have the power to regulate communication between the political branches,” Eitel said.
The environmental plaintiffs also lack standing to ask for such an injunction in federal court, since the recommendations alone can’t harm them and any alleged injury would result from a “speculative and conjectural” chain of events, according to the agency.
It’s uncertain that Congress will enact legislation implementing the Corps’ recommendations without modification, or that water storage agreements will then be changed to the detriment of protected salmon and steelhead, the agency claims.
“You need that concrete harm and the action you’re seeking to enjoin,” but that link doesn’t exist in this case, Eitel said.
Attorneys for the Oregon Farm Bureau Federation and the Oregon Water Utility Council, which have intervened in the lawsuit, supported the government’s position that the environmental plaintiffs lack standing to challenge the recommendations.
“It is a decision that it is up to Congress to make, it is not made by the Corps’ report,” said Crystal Chase, attorney for the Oregon Farm Bureau.
Andrew Missel, attorney for the environmental groups, said the government’s arguments were “often egregiously wrong.”
Under the relevant case law, the plaintiffs can challenge the federal agency’s report as failing to comply with the Endangered Species Act, which doesn’t raise problems with the separation of powers among the branches of government, the plaintiffs claim.
“We’re not asking the court to stand in the shoes of Congress,” Missel said.
Likewise, the need for Congress to approve the water allocation does not preclude the plaintiffs from challenging the Corps’ decision, since the agency has “committed itself to a course of action,” he said.
“At this point, the Corps has taken the last discretionary step it needs to take” in the allocation process, Missel said.
The environmental plaintiffs are concerned the water allocation plan will prejudice the ongoing “consultation” between federal agencies about the impacts of the overall Willamette dam system, which is expected to be done in 2023, he said.
“If you don’t know how much water is needed for fish, you can’t allocate water to other uses,” Missel said.
The environmental plaintiffs would suffer irreparable harm if Congress enacts the water allocation into law, but that injury can still be prevented with an injunction retracting the plan before Congress considers it, according to the plaintiffs.
“If reallocation is authorized, it will lock in future environmental harm that this court can’t remedy,” Missel said.