Conservation and Fishing Groups File Lawsuit in Federal Court Over Endangered Species Act Violations at Eel River Dams

Mainstem Eel River [Photo Credit CalTrout_Mike Weir]

On August 15, five organizations working together to protect and restore vital North Coast salmon and steelhead fisheries filed suit against the federal agency that regulates the nation’s hydropower dams. The suit alleges the agency violated the Endangered Species Act (ESA) by failing to develop license terms to protect native fish while plans are prepared to decommission the Potter Valley Project’s two dams on the Eel River. The groups – California Trout, Friends of the Eel River, Institute for Fisheries Resources, Pacific Coast Federation of Fishermen’s Associations and Trout Unlimited – charge that the Federal Energy Regulatory Commission (FERC) is allowing excessive and unlawful “take” of ESA-protected fish species below the dams.

FERC oversees the licensing of hydroelectric facilities like Pacific Gas & Electric’s Potter Valley Project. As part of the terms for its licenses, FERC requires hydropower project owners to consult with federal fisheries biologists at the National Marine Fisheries Service (NMFS) to ensure project operations will not lead to the extinction of endangered species. “Take” includes not just the direct killing of endangered species, but also actions that interfere with vital breeding and behavioral activities such as migrating.

The lawsuit asks the U.S. Ninth Circuit Court of Appeals to modify the Annual License FERC recently issued for the Project, in order to comply with the Endangered Species Act.

The 50-year license for the Potter Valley Project expired in April of this year. Shortly thereafter, FERC issued an Annual License for the Project following PG&E’s January 2019 announcement that the company would not seek to renew its license due to significant financial losses incurred from maintaining the Project. FERC recently approved PG&E’s proposed 30-month schedule to develop a plan to decommission the Project, and will continue to issue short term Annual Licenses for the Project until decommissioning is complete.

“This litigation is the first step in making sure FERC and PG&E protect Eel River salmon and steelhead while working toward dam removal,” said Alicia Hamann, Executive Director for Friends of the Eel River. “PG&E operates the fish-killing project, but FERC can change the terms of PG&E’s license to ensure that legally protected salmon and steelhead survive. NMFS has made clear that, as currently operated, the dams are killing and harming far more fish than anybody thought when the current license terms were developed 20 years ago.”

This spring, before the Potter Valley Project’s 50-year license expired, NMFS asked FERC to modify the license to protect declining fish populations, and to consult with NMFS on the best way to do that.

Neither PG&E nor FERC has changed operations as NMFS requested.

“The Eel River offers perhaps the best hope for recovery of wild salmon and steelhead stocks in all of California. Once the Potter Valley Project dams are removed, the Eel will become the state’s longest free-flowing river. Hundreds of miles of intact stream habitat in the headwaters of the Eel provide cold, high-quality water and habitat conditions – an excellent fish nursery,” said Redgie Collins, Legal and Policy Director for California Trout. “FERC didn’t do its full due diligence in issuing the Annual License for the Potter Valley Project’s continued operations. Business as usual won’t cut it for Eel River salmon and steelhead, and we are committed to make sure the Annual License process addresses known and increasingly severe adverse impacts on fish until these obsolete dams come out.”

“Salmon and steelhead populations on the West Coast are really struggling right now, and along with them our coastal and inland communities that rely on salmon and steelhead for food and jobs,” said Vivian Helliwell, Watershed Conservation Director for the Pacific Coast Federation of Fishermen’s Associations. “The science is clear: restoring the Eel River by removing the outdated dams is incredibly important to our fisheries throughout northern California, and restoring the Eel River is not just good for the fish, it’s part of keeping our river systems healthy, which benefits us all.”

“Our request to the court is simple,” said Matt Clifford, staff attorney for Trout Unlimited’s California Water Project. “NMFS has told FERC that the Potter Valley Project harms salmon and steelhead populations. Despite that harm – which is far greater than previously thought – FERC has allowed PG&E to continue to operate their dams in the same way. We’re asking the court to step in and require FERC and PG&E to do the right thing and protect fish while they are working to decommission this obsolete hydropower facility.”