(CN) — A portion of a dam on the Puyallup River in Washington, operated by the utility company Electron Hydro, must be removed because it harms fish protected by the Endangered Species Act, a federal judge ruled Friday morning.
In December 2020, Electron Hydro attempted to replace a central portion of the dam, which lies on the Puyallup River near Tacoma. A temporary bypass channel was lined with field turf, rubber and other materials. Then it ruptured, spilling its contents into the river.
Once authorities were notified of the spill, Electron Hydro was ordered to clean up the river before continuing any construction on the dam. Where the temporary bypass channel once stood, Electron erected a temporary rock dam which remains in place to this day.
The Puyallup Tribe, a federally recognized tribe in western Washington, sued Electron Hydro in 2020, claiming that the company polluted the river with toxic materials when the the temporary bypass ruptured.
The tribe also claimed the rock dam impeded the upstream travel and spawning of endangered Chinook salmon, bull trout and steelhead trout. This amounts to an illegal taking of the fish, the tribe says, because Electron Hydro does not possess permits to take any of the fish.
In an 11-page opinion, Senior U.S. District Judge John Coughenour found the tribe presented extensive evidence that the rock dam impedes safe passage for the fish. (Electron Hydro had not argued otherwise.) Since the case is an Endangered Species Act case, he wrote, the tribe needs only to prove that irreparable injury has occurred.
A Reagan appointee, Coughenour pointed to evidence presented by the tribe of “attraction flows” — that is, accelerated water which attracts migrating fish to the rock structure and away from the fish ladder that would allow them to continue upstream.
“When defendants originally proposed the temporary structure, Eric Marks, a Puyallup Tribe biologist, opined that it would generate ‘false attraction flows.’ He was prescient,” Coughenour wrote. “Within a few months, the National Marine Fisheries Service concluded the structure represented a ‘devastating and unacceptable impact to threatened salmon and steelhead’ by establishing ‘significant impediments to upstream passage’ including ‘attraction flows that would direct migrating fish away from the ladder to an impassable section of the dam.’"
"Defendants counter later improvements ameliorated these harms," the judge added, "but they present no evidence suggesting anything but a transitory benefit.”
Coughenour noted that Electron Hydro’s own expert fish biologist, Dr. Jaffrey Barrett, concluded that the fish “go where the flow goes." The tribe had presented evidence that the rock dam was impeding the passage of fish in the river as recently as September 2023 — an opinion that is not unique to the tribe’s biologists.
“According to Gabel Mabel, a Washington Department of Fish and Wildlife Fisheries Biologist, the ‘current fish passage conditions have certainly continued to deteriorate along the rock dam and sheet pile that was installed.’ She concludes that ‘this isn’t surprising and is exactly what most of us were concerned about,’” Coughenour wrote.
Electron Hydro argued that false attraction flows were just a theory but that there was no physical evidence, such as visible dead fish, to prove it.
In response, Coughenour wrote that this argument contradicted Electron Hydro’s own expert.
“While defendants’ argument conflicts with the Tribe’s, their evidence does not," Coughenour wrote. “Accordingly, the court finds that defendants fail to establish a genuine issue of material dispute regarding the rock dam/spillway’s role in harming and harassing Chinook salmon, steelhead trout, and bull trout. By impeding safe passage, the structure ‘disrupts their normal behavior patterns.’”
Electron Hydro asked the court to stand pat and allow them to finish replacing the dam, but Coughenour wrote that the permitting process could take years.
“As the Tribe points out, because fish passage has been impacted for years and final permitting remains years away, the situation is urgent," he wrote. "Absent the imposition of a lasting remedy, take will reoccur.”
Coughenour ordered Electron Hydro to apply for any necessary permits within the next 10 days and to remove the rock dam portion of the dam by Sept. 15, thereby allowing unimpeded passage for the fish.
“Removing this portion of the rock dam/spillway will ensure safe passage for upstream and downstream migrating fish but is as narrow in scope as is possible," the judge concluded. "Therefore, it will adequately remedy the ongoing take."
In a statement, the Puyallup Tribal Council praised the ruling.
“For years, Electron Hydro has followed its devastating act of polluting the water with turf with further harm to fish by preventing their upstream migration," the tribe stated. "We are grateful the court agreed with our repeated calls for its removal because the dam violated the Endangered Species Act."
"The Tribe will work closely with agencies to be sure this happens as soon as possible," the statement added. "It is a good day for salmon, even if it took years to get to this result.”
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