The Cougar Dam

By: Matthias Fostvedt

Last November, a group of environmental law students from nearby University of Oregon School of Law spent an (uncharacteristically) sunny Fall day touring the U.S. Army Corps of Engineers’ Cougar Dam, a 450-foot rock-fill dam on the South Fork of the McKenzie River. On the face of it, one might think this looks more like the setting of a bad TV sitcom: a group of future environmental lawyers spending a perfectly good Friday with the operators of a large Federal dam. Although there was a good deal of laughter, comedy, and dialogue throughout the day, it didn’t come from any pre-recorded laugh track or cheap script. It came from a mutual desire to be transparent, progressive, and understanding of one another.

Oregon Law Students feeling small at the base of the 450-foot rock-fill dam

 As a first-year student, the tour helped me understand how all dams, non-Federal and Federal, are regulated in the U.S.

In a nutshell…

Non-Federal dams are generally much more tightly regulated. They must re-license every 30-50 years, and if the dam can’t feasibly keep up with modern environmental standards, the dam gets decommissioned.

Federal dams, in contrast, never need to be relicensed. Their main source of regulation comes from a biological opinion (BiOp), issued once every four years by U.S. Fish and Wildlife Service and NOAA Fisheries. The BiOp is a floor that aims to protect endangered species like Chinook salmon and bull trout from extinction, and recommends best practices for dam operations to meet that goal. The agency in charge of the dam then incorporates the management practices laid out in the BiOp into their operation manual, which for national security reasons, is not available to the public.

Oregon Law Students feeling the buzz of one of Cougar’s turbines

In light of my newfound understanding of the immense regulatory discretion we give these Federal agencies, I began to grapple with a couple of big questions: Are agencies like the Army Corps managing these waterways responsibly? And if not, when should lawyers step in and crack the whips of litigation? In the end, we can answer these questions with one simple determination: are things actually getting any better?

In the Willamette Valley, the Army Corps is dealing with relatively few lawsuits, which can be costly and time-consuming. Taking advantage of this slack, the Corps has taken the initiative to make substantial, expensive improvements to structures like Cougar Dam.

In the past 16 years, they have spent big money to address the challenges faced by ESA-listed Chinook salmon and bull trout by making 3 significant changes to Cougar Dam.

  1. $50.5 million installing a temperature control tower, which ensures that the temperature and oxygen levels of the water that the dam discharges resemble historical seasonal variation in temperature.
Cougar’s temperature control tower, making a Goldilocks cocktail of seasonally accurate water to attract anadromous fish
  1. $10.4 million installing a new adult fish collection facility at the base of the dam to catch up-stream migrating fish and truck them past the reservoir.
Cougar’s newest addition, the fish collection facility to capture anadromous fish and truck them to the top of the reservoir
  1. At no additional cost, experimenting with different approaches to downstream fish passage. The most promising approach is temporarily draining the reservoir down to river-level, an approach that has already been taken on Fall Creek Reservoir, another Army Corps structure in the Willamette Valley. With the copious amount of rainfall the Willamette Valley receives, many of the reservoirs can be re-filled in as little as 3 days during the rainy season. This gives the Army Corps a very attractive option to completely mitigate the mortality and confusion that downstream migrating juveniles face.
The original diversion tunnel – the potential solution to downstream migration

Once again, these changes have not come from judicial prodding, but rather from the agency’s own initiative to avoid litigation in the future.

Have these improvements worked? To some extent, yes. Before the Army Corps installed Cougar’s temperature control tower, zero Chinook salmon returned to the base of the dam, too confused by the inaccurate water temperature. Now, annual adult salmon returns range from 250 to 500, a number that is expected to rise as more juveniles are released into the cycle. However, this is still a meager number compared to the South Fork McKenzie’s historical returns, numbering in the 4,000 range. But it is a start.

Ultimately, how should public interest groups decide which Federal dams to challenge with litigation? The conclusion that I’ve reached is that we should abstain from cracking the whips of litigation on dams that are actively making things significantly better.

Hindsight is 20/20, and public interest groups should have sued Cougar Dam during the decades when its funky water was preventing any salmon from venturing up the South Fork McKenzie. But now, Cougar has made substantial improvements that are actually addressing salmon recovery. Let’s keep an eye on this recovery, and step in if the process becomes static.

Big thanks to the Army Corps for the invitation and a wonderful day!

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