[env-trinity] Fish Groups File Suit To Stop Fish Kills On Butte Creek

[Daniel Bacher]

Fish Groups File Suit To Stop Fish Kills On Butte Creek

by Dan Bacher

Fishing and environmental groups filed a lawsuit in federal court on May 19 
to compel two federal agencies to consult with one another to restore the 
spring run chinook salmon of Butte Creek.

Earthjustice filed legal action on behalf of the plaintiffs in the Ninth 
District Court of Appeals in San Francisco in an effort to prevent fish 
kills like those that occurred in 2002 and 2003 from taking place again this 
year and in coming years. Butte Creek, a tributary of the Sacramento River 
that drains the northern Sierra Nevada northeast of Chico, plays host to the 
largest, most vibrant remaining run of spring chinook salmon in the Central 
Valley.

The groups filed the lawsuit to force the Federal Regulatory Commission 
(FERC) to consult with the National Marine Fisheries Service (NOAA 
Fisheries) regarding the impacts of a small Pacific Gas and Electric 
hydroelectric project, the DeSabla-Centerville Project, on the protected 
fish. The groups also put PG&E on a 60-Day Notice that any fish kills this 
summer caused by diverting the creek will prompt legal action for the 
killing of a listed species.

"Enormous efforts were made to bring the spring-run chinook back from the 
brink of extinction, including the removal of several dams on lower Butte 
Creek,” said Allen Harthorn of Friends of Butte Creek. “It's time for FERC 
to consult formally with the NOAA-Fisheries to reassess the impacts of the 
DeSabla-Centerville hydroelectric project.”

Over 7,000 fish died before spawning in July and August of 2002 when low, 
warm water conditions on the creek below Centerville Dam spurred an outbreak 
of disease among the salmon, according to Harthorn. An even worse fish kill 
took place in 2003 when 11,200 spring run adults died before spawning. NOAA 
Fisheries estimated that 80 to 90 percent of the run that year perished.

The massive fishery disaster – arguably the largest die-off of state and 
federally listed salmon in U.S. history – prompted NOAA Fisheries to 
intervene and order FERC to enter a consultation process with them in 
September 2003.

The spring-run chinook was listed as “threatened” under the federal 
Endangered Species Act in 1999.  During the spring, summer, and early fall 
months, adult spring-run chinook occupy approximately ten miles of holding 
and spawning habitat in Butte Creek. Fish habitat conditions in this section 
of the creek, including water flow and temperature, are controlled by 
operation of the DeSabla-Centerville hydroelectric project. PG&E operates 
the project under licensing authority of FERC.

“Because the species was listed as threatened in 1999, conservation and 
fishing groups believe the permitting agency, FERC, should consult with NMFS 
and issue new operation guidelines to PG&E that will protect the salmon,” 
according to a press release by the organizations.

The groups include the California Sportfishing Protection Alliance, Friends 
of the River, Institute For Fishery Resources, Northern California Council 
of the Federation of Fly Fishers, Pacific Coast Federation of Fishermen’s 
Associations and Sacramento River Preservation Trust.

To date, FERC has refused to formally consult with its sister agency, NOAA 
Fisheries, in spite of being mandated to do so under federal law. The groups 
in April 2004 filed a petition with FERC, requesting that FERC commence 
formal consultation with NMFS, the federal agency charged with the 
protection of the threatened spring run under section 7(a)(2) of the federal 
Endangered Species Act.

However, FERC denied their petition on August 5, 2004 and denied a rehearing 
of the license order on March 23, 2005. FERC ruled that the petition seeking 
consultation was “premature “ and the FERC’s discretionary control over the 
project’s operations to protect fish does not constitute an “agency action” 
for the purpose of section 7 consultation.

Lisa Randle, news representative for PG&E, said PG&E has not reviewed the 
Earthjustice appeal and therefore cannot comment on the specifics of the 
appeal.

“However, PG&E believes that FERC correctly analyzed the legal issue in its 
Order Denying Rehearing of Earthjustice's petition,” explained Randle. 
“Formal consultation under the Endangered Species Act is premature at this 
time because there is no pending action at FERC.”

Randle said that the DeSabla-Centerville Project is currently in the “very 
early stages” of relicensing; "FERC will initiate formal consultation with 
NOAA Fisheries after PG&E files its application for a new license in 2007," 
she noted.

She also said PG&E and a number of agencies are also doing a “considerable 
amount of consultation” regarding the Butte Creek salmon fishery already. 
“We consult yearly with the DFG, Park Service, NOAA Fisheries, the Water 
Board and other agencies to develop a summer operation plan to optimize the 
fishery,” she stated.

Anglers and environmentalists believe that FERC is stalling – and violating 
the ESA – by refusing to formally consult with NOAA.

“The gist of FERC’s argument is that ‘we’re getting around to it,’” said 
Laura Robb, associate attorney for Earthjustice. “But the problem with that 
argument is that while they’re getting around to it, a lot of fish kills 
will take place. If they don’t put on the ground protections into place, we 
will see more fish kills.”

“It all comes down to one federal agency refusing to talk to another,” said 
John Beuttler, consultant for the California Sportfishing Projection 
Alliance. “It’s not only against the law, but it’s against the whole idea 
that the purpose of the government is to serve the people and not 
vice-versa. By refusing to consult with NOAA Fisheries, FERC is showing they 
can’t care about our natural resources, but only about licensing 
hydroelectric projects.”

Spring-run chinook salmon, once the largest run of salmon in the Central 
Valley, migrate as adults from the ocean to their birth streams during the 
spring when water flows are high from snowmelt, allowing them access to 
higher elevation pools where they wait out the summer to lay their eggs in 
the fall. In addition to Butte Creek, these unique fish cling to survival in 
two other Sacramento River tributaries, Mill and Deer creeks.

A major obstacle to fish restoration is Centerville Head Dam, located 300 
yards below De Sabla Forebay. “Salmon are almost completely blocked from 
reaching the creek's upper watershed – and PG&E has made no mitigations for 
these losses,” according to the coalition.

Restoring spring run chinook is crucial to maintaining viable commercial and 
recreational salmon fisheries in California. “We have a very pragmatic 
reason for working for the restoration of spring chinook salmon,” said Zeke 
Grader, executive director of the Pacific Coast Federation of Fishermen’s 
Associations. “If the spring run is imperiled further by fish kills, the 
federal and state governments need to look at every possible impact, 
including commercial and recreational fishing. The more we can bring spring 
run fish up to historic levels, the less chance we have of seeing more 
restrictions imposed on fishermen.”

Furthermore, Grader would like to restore the spring run to fishable levels; 
since it was formerly the most abundant fish in the system.

“The time has come for government biologists to take a hard look at this 
project and determine what can be done to avert more tragic fish kills to 
promote the recovery of the spring-run,” summed up Trent Orr, an attorney 
from Earthjustice who is representing the coalition in court.