POTTER VALLEY, CA, 5/17/23 — The coalition of fishing and conservation groups that sued the Federal Energy Regulatory Commission (FERC) last summer has now filed a lawsuit against Pacific Gas & Electric (PG&E), which operates the Potter Valley Project, claiming that the project fosters illegal “take” of threatened salmon and steelhead populations.
The groups hope the lawsuit will lead to operations changes ahead of imminent decommissioning of the project, for which PG&E will submit its final surrender application to FERC in 2025. The suit says PG&E maintains water temperatures below the dams that are too high for salmonids, operates Cape Horn Dam and its fish passages facilities in a manner that injures and kills species listed under the Endangered Species Act (ESA), blocks access to high-quality habitat above the dams, and makes it difficult for juvenile fish to migrate out to sea.
Two lawsuits in play
Following the expiration of the Potter Valley Project’s 50-year license, PG&E has been operating the 100-year-old water diversion project (which no longer produces hydroelectric power) under annual licensure. Last year, when a 20-year Biological Opinion saying that project operations were safe for fish species under the ESA expired, the National Marine Fisheries Service (NMFS) wrote to PG&E saying that its activities were no longer covered by the prior Biological Opinion.
“Cape Horn Dam, the associated infrastructure, fishway maintenance, and flow operations to achieve fish passage at the passage facility are neither described within the Description of the Proposed Action, nor are their effects to listed species assessed within the Opinion,” Assistant Regional Administrator of the California Coastal Office Alecia Van Atta wrote to FERC. “Consequently, we did not authorize incidental take resulting from these effects (e.g., delayed or blocked migration and predation of ESA-listed salmonids caused by the configuration and full operation of the Cape Horn Dam fish passage facility).”
This led California Trout, Friends of the Eel River, Trout Unlimited, Pacific Coast Federation of Fishermen’s Associations, and the Institute for Fisheries Resources to sue FERC when the regulatory entity opted not to put NMFS’ suggested conditions on PG&E’s interim annual licenses. The suit under the ESA says that FERC caused illegal take of threatened California Coastal Chinook salmon and Northern California steelhead trout in the Eel River.
The groups have now filed a similar suit against PG&E. To sue FERC, they had to file within 60 days to dispute a licensing decision, Matt Clifford of Trout Unlimited explained; to sue PG&E, they had to declare intent and give the utility 60 days to respond.
“We’re really hopeful now that dam removal is going to happen,” Charlie Schneider of CalTrout told The Voice. “We’re years and years ahead of where they were on the Klamath initially. … That’s really encouraging, but what we really want to make sure of is that we’re not harming fish in the interim.”
Decommissioning doesn’t necessarily mean dam removal
These groups also advocate for removal of both Scott and Cape Horn dams in the decommissioning process, as the dams diverting water from the Eel River to the Russian River for primarily agricultural water rights block fish passage along the river’s full length and to its headwaters. The Eel River was recently named one of America’s Most Endangered Rivers in 2023, in part because of the potential for dam removal.
“The river above the dams is really amazing habitat that’s been cut off for 100 years,” Clifford told The Mendocino Voice.
PG&E Spokesperson Paul Moreno told The Voice that PG&E’s initial draft application to FERC in November of this year will include “removal of all in-water facilities (dams and features in rivers), unless an entity steps forward with a proposal of which PG&E will consider.” That entity would need to demonstrate financial and technical ability to operate portions of the project by July, Moreno explained.
Russian River water users who currently rely on the diversions for their livelihoods have advocated forming a body to possibly take over the project and continue discussions that happened most recently in Congressman Jared Huffman’s now-dissolved Two Basin Partnership. The new Russian River Water Forum (RRWF) held its first meeting on Wednesday.
Members of RRWF’s Planning Group include supervisors and county staff from Mendocino, Humboldt, Sonoma, and Lake counties, as well as representatives from both basins and from the Lytton Band of Pomo Indians, Pinoleville Pomo Nation, Potter Valley Tribe, Yokayo Tribe of Indians, Round Valley Indian Tribes, and the Wiyot Tribe. Most of the groups currently suing PG&E are represented as well. The RRWF’s most important mandate is to identify water supply resiliency solutions, per the meeting.
The issue also becomes more pressing as PG&E has determined that heightened forecasts for seismic activity create risks for communities downstream of the dam. Spillway gates that would normally be closed in the spring, preserving water upstream, now remain open, lessening the risk. This means that less water will be stored at adjoining Lake Pillsbury, such that flows to the Russian River will likely mimic a year of drought despite 2023’s abundant rainfall.
Further, years of low flows combined with dam diversions can have impacts that are felt down the line, even if dramatic changes were made this year.
“Salmon season is closed this year for the second time,” said Vivian Helliwell, Watershed Conservation Director for the Pacific Coast Federation of Fishermen’s Associations. “West Coast salmon and steelhead populations are really struggling right now, and along with them our coastal and inland communities that rely on these fish for food and jobs.”
The Russian River had its lowest steelhead numbers on record this year, Schneider said.
“There’s not a lot of projects that rise to this level of importance if we want to have salmon in the future,” he said. “This is a place where I think we can make a big difference.”
PG&E maintains that the project does not engage in unlawful take of fish.
“We have just received the complaint and are reviewing it,” Moreno wrote to The Voice on Tuesday afternoon. “We are confident that our Potter Valley Project’s operations are in compliance with all environmental laws, including the Endangered Species Act.”
Read the full lawsuit here.Complaint-Friends-of-the-Eel-River-et-al.-v.-Pacific-Gas-and-Electric-Company
Note: Kate Fishman covers the environment & natural resources for The Mendocino Voice in partnership with a Report For America. Her position is funded by the Community Foundation of Mendocino, Report for America, & our readers. You can support Fishman’s work with a tax-deductible donation here or by emailing [email protected]. Contact her at KFishman@mendovoice.com or at (707) 234-7735. The Voice maintains editorial control and independence.
So my family has owned soda Creek store for 32 years and so who do I get to Sue? Which environmentalist do I get to sue when our business goes under?