California Dam Operators Can’t Dodge Fish-Endangerment Claims

Male and female steelhead trout. (NOAA)

LOS ANGELES (CN) — Federal and regional operators of Southern California’s Twitchell Dam lost their bid to dismiss claims the dam causes unlawful killing of endangered steelhead trout, but they won’t face an emergency injunction restricting their operations, a federal judge ruled Friday. 

Conservation groups San Luis Obispo Waterkeeper and Los Padres ForestWatch say in their 2019 federal lawsuit the way operators of the dam manage activity there results in an “unlawful take” of Southern California steelhead salmon.

The U.S. Bureau of Reclamation, overseen by the U.S. Department of Interior, and the Santa Maria Valley Water Conservation District — which operates the dam — limit the release of water in such a way that the fish cannot migrate, the complaint claims.

The agency has a right to use water diverted from the dam and issues regulations on the release of water, which the district, in turn, reserves the right to use for residents and businesses. 

Regulations governing the timing and volume of water releases are meant to maximize percolation into the area’s groundwater basin and ensure that river flows don’t reach the Pacific Ocean, dam operators said in court filings.

But conservationists say the limits on downstream flow do not allow the Santa Maria River system to connect to the ocean to establish a migratory path for the steelhead trout. 

The water release regulations have resulted in decreased spawning opportunities in the fish population’s spawning habitat located along the Sisquoc River.

Revising regulations to allow for establishment of an adequate migratory flow path would only result in using 4% of the water collected in the dam’s reservoir on an annual basis, conservationists said in their complaint.

The groups brought their claims under the Endangered Species Act — which the steelhead trout is listed under and protects listed species from being trapped, hunted, shot, captured or collected. 

The dam and reservoir are located in San Luis Obispo County, California, and situated on the Cuyama River, upstream from the confluence of the Cuyama and Sisquoc Rivers, which is where the Santa Maria River begins. 

Defendants moved to dismiss the lawsuit on grounds the claims are speculative, not traceable to dam operations and outside of the statute of limitations.

The agency claims water release regulations are guided by congressional authority — and cannot deviate from that guidance — and that any changes to the river flow occurred due to dam construction in 1958, before the act was passed. 

Attorneys for the district said in court documents the local officials have no choice but to operate the dam under agency regulations and have no role in addressing conservationists’ claims.

But U.S. District Judge André Birotte Jr., an appointee of President Barack Obama, said in a 22-page order that the conservation groups’ arguments are not time-barred and that they have standing to pursue their claims against defendants as joint operators of the dam.

“Insofar as the bureau and the district each disclaim responsibility for the effects of the dam by suggesting the other is responsible for its operations, the Court rejects such arguments,” the order states. “The bureau owns the dam and established the [regulations] that dictates the release regime. The district operates the dam on a day-to-day basis and executes the bureau’s release regime. Thus, both the bureau and the district are responsible for the dam operations at the heart of this case.”

Birotte also said the groups can proceed with their claims even though construction of the 241-foot dam predates the act.

Defendants argued in court filings that sending water into the ocean would be wasteful and would not qualify under the “other purposes” in dam water release regulations. 

But Birotte said conservationists can proceed with their claims that federal law may give the agency discretion to adjust its water release regulations to support wildlife. 

“But there is a difference between water ‘wasting’ into the ocean in an uncontrolled manner for no purpose, and water incidentally reaching the ocean in order to serve a useful purpose,” the order states. “And, as even the federal defendants acknowledged at oral argument, the view that such water is ‘wasted’ when it is used for wildlife conservation is antiquated and perhaps obsolete.”

Plaintiffs will also have time to show that steelhead are still present in the river system, even if their populations have been impacted by the dam, Birotte ruled. 

“Given the migratory nature of steelhead, they will not always be present in the Santa Maria River system but instead may return to spawn,” the order states. “Whether they actually do return to the Santa Maria is a factual question that must be resolved upon an evidentiary record.”

Birotte also denied the conservation groups’ motion for a preliminary injunction, which sought an emergency modification to water release regulations. 

The Justice Department declined to comment on the ruling.

In a statement Tuesday, San Luis Obispo Coastkeeper executive director Gordon Hensley praised the court’s decision.

“The court’s ruling makes clear that the Bureau of Reclamation and Santa Maria Valley Water Conservation District are responsible for the dam’s impact on endangered steelhead,” said Hensley. “We hope these agencies stop wasting their resources on lawyers and take reasonable steps to save Steelhead in the Santa Maria River from extinction.”

Also in a statement Tuesday, ForestWatch executive director Jeff Kuyper said the ruling provides benefits for steelhead populations and riverside communities. 

“With minor changes to the flow regime at Twitchell Dam, we can allow endangered steelhead to return to their historic spawning grounds deep in the Los Padres National Forest,” said Kuyper, whose organization is represented by the Environmental Defense Center. “This ruling gives steelhead a fighting chance at survival in the Santa Maria River system, while continuing to ensure adequate water supplies for our farms and communities downstream.”

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