SAN FRANCISCO (CN) — A federal judge ruled Monday afternoon that a California dam harms endangered salmon when it conducts flood control operations.
Coyote Valley Dam, operated by the U.S. Army Corps of Engineers, protects the city of Ukiah from flooding from nearby Lake Mendocino. In 2022, fisheries biologist Sean White sued the Corps claiming the dam's flood control operations kick up sediment in the water, increasing turbidity and harming endangered Central California coast steelhead, coho and Chinook salmon.
White’s previous requests for injunctive relief were denied in 2023, yet he was granted summary judgment on his claims on Monday after providing more data.
U.S. District Judge Jacqueline Scott Corley, a Joe Biden appointee, wrote in her 18-page opinion that it was beyond dispute that the dam’s operations harm the fish.
“Plaintiff has established there is no factual dispute that defendants’ flood control releases at the Coyote Valley Dam create a ‘likelihood of injury’ to and, thus, taking of the protected salmonids. Plaintiff provides data he collected between January and May 2023 — when the Corps was operating the dam for flood control operations — showing turbidity at the dam’s outlet is much higher and more persistent than that from the other tributaries to the Russian River and the source water above Lake Mendocino,” Corley wrote. “Applying the turbidity data to the scientific literature, plaintiff shows the increased turbidity has significant negative effects on the protected salmonids, including ‘egg-to-fry mortality, delayed embryo development, physiological stress and negative effects on homing behavior, feeding and growth that threaten overall population viability.’”
Corley found White’s research was corroborated by the Corps’ own research that the operation of the dam could bring harm to salmon. She cited a 2008 biological opinion from the government and two reports last year that showed the operations of the dam increased the turbidity of the water.
The Corps did not deny that flood control operations increased the turbidity, but instead argued that White must show that the dam’s operations were the main cause of the increased turbidity. The Corps argued that certain preexisting conditions out of its control also affect turbidity, such as storms or weather events.
Those facts did not get the Corps off of the hook, though.
“However, that other factors also increase turbidity does not negate the flood control releases’ contribution to the increased turbidity. When discussing the definition of ‘harm’ in Section 9, National Marine Fisheries Service acknowledged under the ESA, ‘an action which contributes to injury can be a take even if it is not the only cause of the injury. This concept includes actions reasonably certain to contribute to the death or injury of listed species,’” Corley wrote. “Therefore, contrary to defendants’ position, plaintiff does not need to distinguish the impact of the Corps’ flood control releases from other contributing factors to establish proximate causation.”
Corley also ruled that the Corps violated the Endangered Species Act when it failed to initiate consultation on a new biological opinion in a timely manner. She noted the Corps was aware in 2020 that the 2008 opinion would expire in September 2023, yet dragged its feet for nearly three years before requesting a new biological opinion.
“As such, defendants failed to comply with the ongoing responsibilities mandated by the ESA’s Section 7 to ensure their actions are ‘not likely to jeopardize the continued existence of any endangered species or threatened species,’” Corley wrote.
The Corps did not dispute that it was late on the consultation, but argued the section 7 claim should be moot because it reinitiated consultation in February 2024 and expects it to be done by August 2024. Corley wrote that that was not good enough because those dates are “aspirational” and can be postponed.
Corley did not issue a remedy at this point, however. White had requested an injunction to stop the dam from conducting any flood control operations unless it was necessary to prevent loss of life or property. But since it is the dry season and there will likely not be any flood releases until after the issuance of the new biological opinion, Corley held the injunctive relief request in abeyance.
“If defendants can produce a new [opinion] and obtain an incidental take statement before the next flood season begins as they anticipate, there is no reason for the court to step into the shoes of the expert agencies to prematurely determine what is the best dam operation practice for the protected salmonids,” Corley wrote. She said she would revisit the issue if the biological opinion is not issued by August.
Lead attorneys for both parties did not reply to requests for comment.
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