Environmental advocates allege in a lawsuit that the Eugene Water and Electric Board failed to implement legally required fish passage measures and instead opted for a less effective method.
Cascadia Wildlands, a local environmental nonprofit, and several other conservation groups represented by Advocates for the West and by Public Justice, filed the lawsuit in March, saying that EWEB’s Trail Bridge Dam, part of the Carmen-Smith Hydroelectric Project, failed to meet standards of the Endangered Species Act.
EWEB says safety issues caused delays in the implementation of fish passage measures at the Trail Bridge Dam.
Carmen-Smith consists of three dams, two hydropower plants and three reservoirs all on the McKenzie River. The project generates enough energy to power around 16,000 homes, according to EWEB. Trail Bridge, located approximately one mile downstream from Sahalie Falls, is the farthest downstream dam of the project.
Negotiations to relicense Carmen-Smith began in 2006, and in 2008, EWEB entered a settlement to relicense operations with wildlife agencies, the Federal Energy Regulatory Commission (FERC), Native tribes and conservation groups.
The 2008 settlement provided several terms for renewal, including the construction of a volitional fish ladder.
In 2015, the relicensing settlement was delayed when EWEB requested an economic viability analysis and later determined that the fish ladder was too expensive. In light of the economic analysis, FERC granted EWEB an amended 40-year license in 2019 to continue operating Carmen-Smith — amending the fish passage to a non-volitional trap-and-haul system by May 2022.
The plaintiffs say that despite this change, EWEB still has failed to timely implement this crucial fish passage. “We were quite surprised to learn that even though the agencies had signed off on this much less effective plan, that EWEB still hadn’t done it,” says Bethany Cotton, Cascadia Wildlands conservation director.
Cotton says fish ladders are better for fish, and while more costly, they are a worthwhile investment. “It doesn’t require vehicles, doesn’t require human intervention and doesn’t require very much maintenance,” Cotton says.
In 2021, EWEB discovered sinkholes in the area near the planned trap-and-haul area. “Sinkholes can cause dam failure, which would be really catastrophic for people, property and natural resources downstream,” says Aaron Orlowski, EWEB spokesperson.
However, in 2023, a seven-page declaration by a former EWEB employee alleges that EWEB staff members deliberately postponed the construction of fish passage measures as well as violating FERC license terms.
The document outlines a timeline of events alleging multiple different incidents where the project manager instructed the employee to purposefully delay implementing requirements outlined by the 2019 license.
Orlowski writes in a statement, “The concerns by the former employee stemmed from differences in approaches to project management.” He writes that EWEB retained two independent law firms in 2023 to investigate the claims, and the firms found no evidence of wrongdoing. “At EWEB, physical and psychological safety is a core value,” Orlowski writes. “We remain committed to fostering a workplace culture where all employees feel safe, respected and supported.”
Hannah Goldblatt, attorney for Advocates of the West, says the former employee’s statement provides important background information; the lawsuit focuses on EWEB’s failure to implement fish passage and violation of the Endangered Species Act. “Our case was really developed based on the clear public record depicting EWEB’s failure to meet the terms and conditions of its biological opinion and the fish passage articles required by its license,” Goldblatt says.
Goldblatt alleges, “The dam completely blocks Chinook salmon and bull trout’s ability to migrate above and below the dam which means the fish are unable to reach the important spawning and rearing habitat above the dam.”
Goldblatt says that without adequate fish passage, fish are more prone to death and injury from predation and from trying to pass through the dam’s turbines. EWEB was issued an “incidental take statement” by the National Marine Fisheries Service, allowing the dam to operate while causing limited harm to threatened fish species.
Goldblatt argues that the take statement “is no longer valid because EWEB has blown past all of the deadlines for permanent fish passage.”
Orlowski says EWEB is committed to implementing fish passage at the dam as outlined by the licensing agreement, and the utility has conducted several habitat improvements in the area as well as constructed an interim trap-and-haul method. “We’ve invested more than $18 million in fish, wildlife and habitat improvements in the area, and that has also been because we haven’t been able to install the permanent fish passage facility,” Orlowski says.
Cotton says that despite these improvements, threatened fish species like Chinook and bull trout are still unable to effectively traverse the dam during spawning seasons. EWEB operates the interim trap-and-haul passage during wildfire season. “In two of the last three years, that highway [OR-126] has been closed at the height of the spawning season,” Cotton says.
In April, EWEB’s Board of Commissioners approved an additional $3.3 million to be paid to the construction company contracted to design the trap-and-haul. Cotton says, “It’s frankly shocking that at this late date, in April 2025, EWEB is paying money to an engineer to design a trap-and-haul facility that was supposed to be completed years ago,” Cotton says.
Goldblatt says that the ultimate goal of the lawsuit is “to see EWEB do a fish ladder at the dam, but even a new trap-and-haul facility would be an improvement.” The lawsuit also requests that if fish passage cannot be implemented in a timely way, the Trail Bridge Dam should be decommissioned and removed.
Orlowski says EWEB is disappointed that a lawsuit was filed. “When we have to spend money on hiring attorneys, customer funds ultimately pay for that,” he says.
Cotton disagrees, saying that EWEB has to be held accountable and that legal measures like the one underway are essential to ensure the survival of native fish. “I think there’s some irony in blaming conservation organizations who came to them and asked them to do the right thing for their failure to do the right thing,” Cotton says.
On May 16, EWEB filed a motion to dismiss the case on the basis that the plaintiffs have “gone to the U.S. District Court, rather than FERC, which is essentially an end run around FERC,” Orlowski says. “Courts have rejected this type of effort for decades.” In its motion, EWEB says challenges to FERC licensing decisions must go through FERC’s administrative process and appeals must be taken to the U.S. Court of Appeals, not the district court. Goldblatt says the plaintiffs disagree with EWEB’s filings and plan to oppose the motion because they are not challenging the FERC license itself — but instead claiming EWEB violated the ESA by failing to complete fish passage required by the license.
Orlowski says EWEB is still working hard to implement fish passage at the Trail Bridge Dam. “It is now possible to move forward with installing the fish passage, and we’re doing that as fast as we can,” he says.
On the same day, May 16, the plaintiffs filed a preliminary injunction that, if approved, would force EWEB to make immediate improvements to its trap-and-haul system. “We don’t want there to be another spawning season where no fish pass the dam,” Cotton says.
Judge Mustafa T. Kasubhai has scheduled in-person oral arguments on the motion to dismiss for June 30.
Cotton says despite the challenges associated with implementing effective fish passage, she’s hopeful her nephew can see a future where fish are able to pass the Carmen-Smith hydroelectric project unimpeded. “I want him, when he’s my age, to be able to see spring Chinook salmon and bull trout in the wild. And that’s not going to happen if we don’t address the main causes of harm to these species,” Cotton says.