Trying to add a payment method? You can do this on the 
QuickTake:
Environmental groups pushed a series of fish-passage challenges this year, including a federal lawsuit over EWEB’s Carmen-Smith Hydropower Project.
This story has been updated to include new information from Eugene Water and Electric Board.
Environmental groups with offices in Eugene have pressed a flurry of fish-passage cases in recent months, watchdog work that will carry into the new year as regulators and utilities adjust plans.
To make sense of these disputes, it helps to step back to how fish passage is defined — an issue that ended up in court on its own.
Fish passage — as described in Oregon Administrative Rules — refers to the ability of migratory species like salmon to move upstream and downstream as they travel between the ocean and spawning habitat.
Infrastructure, including dams and culverts, can block that movement. Two long-standing methods help fish get past large barriers: volitional passage or trap-and-haul.
Volitional passage
Structures such as fish ladders that let fish swim upstream on their own.
Trap-and-haul
Requires people to capture fish and transport them by truck or other means.
Now, onto the cases.
How Oregon defines fish passage in state court
Conservation groups, including Oregon Wild and Native Fish Society, and the Nez Perce Tribe argued that the Oregon Department of Fish and Wildlife quietly revised legal definitions in Oregon Administrative Rules by treating those two practices as essentially interchangeable.
Trap-and-haul cannot be considered equivalent to volitional passage because the fish are not moving independently, the groups and tribe say.
They filed their case in the Oregon Court of Appeals in 2023, contending that the public did not have a meaningful opportunity to comment on the change. A panel of judges ruled in their favor before the Thanksgiving holiday, invalidating the amendments that had the new definitions.
Dispute over EWEB’s fish-passage system
Also unfolding this year: Oregon Wild and Native Fish Society pursued a separate case alongside Willamette Riverkeeper and Cascadia Wildlands in the U.S. District Court’s Eugene Division.
The groups contend that Trail Bridge Dam, part of Eugene Water & Electric Board’s Carmen-Smith Hydropower Project on the McKenzie River, relies on a trap-and-haul system that was intended to be temporary and becomes inaccessible during wildfire season.
The groups alleged the dam harms threatened Chinook salmon and bull trout and that the utility was violating the Endangered Species Act. But most arguments in the case did not center on fish. Instead, the dispute turned on whether the lawsuit belonged in U.S. District Court at all.
EWEB argued that only the U.S. Court of Appeals — not a district court — can hear challenges to the Carmen-Smith project’s Federal Energy Regulatory Commission license, which governs hydroelectric projects on public waterways.
As U.S. District Judge Mustafa Kasubhai mulled a decision over what he called a “complicated issue,” EWEB announced a modified plan for a permanent fish passage — one promised nearly a decade ago.
In a news release, the utility outlined plans for a permanent trap-and-haul facility a few hundred feet downstream of Trail Bridge Dam. The utility said it would include a new barrier system to prevent fish from migrating past the entrance. The project is slated for completion by 2032, barring any unexpected delays.
Nearly a week later, Kasubhai dismissed the federal case.
The groups appealed to the 9th Circuit U.S. Court of Appeals but voluntarily dismissed the appeal in mid-November. Court filings did not explain the decision, and Cascadia Wildlands’ conservation director Bethany Cotton said she could not comment on litigation strategy.
“Our advocacy to ensure EWEB achieves long-overdue fish passage for imperiled bull trout and spring Chinook salmon at Carmen-Smith will continue,” Cotton said in an email.
In response, in a written statement to Lookout Eugene-Springfield, EWEB spokesperson Aaron Orlowski said, “after an extensive facilitated process, EWEB reached an understanding with our federal regulators regarding permanent fish passage at Carmen-Smith. Currently, we are diligently preparing to file an amendment to our FERC license to implement those changes.”
