Federal Fish Agency Reverses Direction on Army Corps’ Responsibility for Dams’ Impacts on Salmon

Nevada City, CA – River conservation groups are outraged at the National Marine Fisheries Service’s (NMFS) reversal of position on the U.S. Army Corps of Engineers’ responsibility for impacts that Corps-owned dams cause Yuba River’s threatened salmon, steelhead trout and green sturgeon. NMFS’ new biological opinion concerning Daguerre Point Dam, and concurrence letter concerning Englebright Dam, delete many important mitigation measures required in previous biological opinions for the dams.

The South Yuba River Citizens League (SYRCL), Friends of the River, and American Rivers expressed deep disappointment that NMFS has turned its back on meaningful protections for Yuba River’s threatened fish. Mandatory measures contained in previous Yuba River biological opinions, such as requiring the Corps to place spawning gravel and woody material in the river to provide safe havens for juvenile fish, are now voluntary. The Corps is no longer required to improve fish passage at the dams, no longer required to reduce predatory fish at Daguerre, and no longer required to impose conditions on Yuba County Water Agency to improve its fish screen at the Brophy Diversion, which is not compliant with NMFS and California Department of Fish and Wildlife screening criteria. NMFS’ decision to lift these requirements is not based on scientific findings that predation, inadequate spawning habitat, impaired fish passage, and other adverse impacts are no longer occurring. Instead, NMFS has merely capitulated in the face of intense political pressure to adopt the Corps’ new legal theory that it has no duty under the Endangered Species Act to mitigate the harm caused by its dams. Under that theory, the Corps contends it only has authority to maintain the dams’ existence and has no authority to take any actions that would benefit the threatened fish species, therefore its maintenance of the dams is not subject to the Endangered Species Act.

NMFS released its new biological opinion for Daguerre on May 12th as well as a letter concurring with the Corps’ assessment that the only activities at Englebright the Corps has discretion over are cleaning portable toilets and maintaining the campgrounds and boat ramps.

“The new Daguerre BiOp and Englebright concurrence represent a 180-degree reversal from NMFS’ position in February 2012 when it found that not only are the Corps’ dams placing salmon in jeopardy of extinction but that the Corps is obligated to take a series of actions to improve conditions for salmon in the Yuba River, including the provision of fish passage to the upper Yuba River by 2020,”said Caleb Dardick, SYRCL’s Executive Director.

“Basically, NMFS is giving the Corps a free pass to ignore Englebright and Daguerre’s adverse impacts on threatened fish species,” said Eric Wesselman, Executive Director of Friends of the River.

Although the new Biological Opinion for Daguerre Point Dam is over 300 pages, and includes information on the alarming status of the three fish species at risk of extinction in the Yuba, the document completely fails to require actions that would be expected under the authority of the Endangered Species Act.

“NMFS has caved into political pressure and has completely abdicated its legal responsibility to protect threatened salmon, steelhead, and green sturgeon in the Yuba River,” said Patricia Weisselberg, attorney for SYRCL and FOR in ongoing litigation over the Yuba River dams. “NMFS provides no independent analysis of its own in its new biological opinion and Englebright concurrence, and merely rubber stamps the Corps’ self-serving assessment that it has no duty under the Endangered Species Act to implement any measures to mitigate the significant adverse impacts to protected fish species caused by the Corps’ dams.”

It remains to be seen how NMFS’ decision will affect a study currently underway by the Corps looking at fish passage improvements at the dams. The study was authorized and funded by Congress this year, and the Corps has requested additional funding to continue the next phase of the study next year.

NMFS’ decisions concerning Englebright and Daguerre are the latest developments in a complicated legal and regulatory saga going back more than a decade.

SYRCL sued the Corps of Engineers in federal court in 2000 to compel it to consult with NMFS about the impacts the Corps’ dams were having on threatened Yuba River fish species. (Under the Endangered Species Act all federal agencies must consult with the appropriate fish or wildlife agency if a federal project may affect endangered species in the area.) Since that time NMFS has issued four formal decisions, called Biological Opinions, which have analyzed the impacts caused by the Corps’ dams.

Environmentalists scored a major victory in February 2012, when NMFS released a Biological Opinion, finding that Englebright and Daguerre were jeopardizing the continued existence of three species of anadromous fish. That Biological Opinion concluded that the Corps of Engineers should take a number of actions to reduce the harm being caused to the threatened species, including implementing a program to provide fish passage past the dams by 2020, removing predatory fish at Daguerre Point Dam, adding large woody material and spawning gravel below Englebright Dam, and restoring habitat through removal of rock debris left over from the construction of the dam more than 70 years ago.

Spring-run Chinook salmon were once plentiful in the Central Valley, with over 600,000 returning to their natal streams each year. But the construction of impassable dams in the 20th Century reduced the habitat available to the species by 80%, resulting in substantial population declines. In 2011, fewer than 5,000 spring Chinook returned to the Central Valley, a reduction of over 99% from historical levels.

Removing barriers to upstream fish passage is urgently needed to halt this continuing slide toward extinction.

SYRCL and Friends of the River are part of a coalition of community and environmental groups to improve conditions on the Yuba River and advocate for improved operation of the dams to increase fish populations and restore them to their ancestral spawning grounds.

For more information and a copy of the Biological Opinions and other documents, please visit www.yubasalmonnow.org on the resource page.