The controversy surrounding Englebright Dam and its effects on endangered fish took another turn this week, and environmental groups are outraged over the result.
The National Marine Fisheries Service (NMFS) released several documents regarding Englebright and Daguerre Point dams on Monday. The documents represent a stark change of position on the effects of the facilities on Chinook salmon and steelhead outlined in a 2012 biological opinion that was challenged in court.
The 2012 biological opinion identified dam removal and other fish passage improvements as the preferred approach to improving conditions for endangered fish.
Yuba County Water Agency, along with Pacific Gas and Electric Co., Nevada Irrigation District, state water project contractors and several Yuba County irrigation districts, legally challenged the biological opinion, arguing that fish passage improvements or dam removal would negatively impact water deliveries and hydropower generation.
U.S. District Judge Morrison C. England instructed the NMFS to issue a new biological opinion by May 12, 2014, and to not cite the 2012 opinion while preparing the new opinion.
The new biological opinion on Daguerre Point Dam and a concurrence letter concerning Englebright Dam delete many of the mitigation measures required in previous biological opinions, according to conservation groups.
The concurrence letter agrees with a new legal theory from the U.S. Army Corps of Engineers contending that existing dams are not subject to the Endangered Species Act, and that the Corps has no authority to take actions that would benefit endangered species.
"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.
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, according to a South Yuba River Citizens League press release.
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, according to the release.
"NMFS went from setting a long list of requirements in 2012 to requiring nothing in 2014," said Caleb Dardick, SYRCL's Executive Director.
The Corps' new legal position that Englebright Dam is not subject to the Endangered Species Act leaves the organization open to lawsuits, and conservation are considering their legal options, said Patricia Weisselberg, attorney for SYRCL and Friends of the River.
Curt Aikens, general manager of the Yuba County Water Agency, said the agency was pleased the Corps and NMFS met the court order to produce a new opinion.
"We're hopeful this biological opinion complies with the Court's directive, resolves the differing perspectives between the Corps and NMFS on these facilities and how to best improve habitat in the lower Yuba River for salmon, steelhead and other fish and wildlife," Aikens wrote in an email.
Englebright Dam is a complete barrier to the historic Chinook salmon, steelhead and green sturgeon spawning grounds in the upper Yuba watershed. Conservation groups such as the SYRCL and American Rivers have long maintained that fish passage to and from habitat above Englebright Dam is essential to restoring a healthy population of spring-run Chinook salmon.
An NMFS spokesperson did not return a phone call for this story.
CONTACT reporterAndrew Creasey at 749-4780.