In this tale, there's a water agency that wants to continue to provide hydroelectric power, irrigation districts that want to continue providing water for crops and conservation groups that want to see an endangered species return to its former glory.

Connected to all of these interests is Englebright Dam — a 280-foot-high structure built to hold back 28 million cubic yards of toxic sediment left over from hydraulic mining during the Gold Rush.

It also houses the Narrows 2 powerhouse, run by the Yuba County Water Agency and, in the eyes of conservation groups such as the South Yuba River Citizens League (SYRCL), a complete barrier to miles of historic spawning ground for endangered spring-run Chinook salmon, steelhead and green sturgeon.

And for the fifth time in 12 years, there's a new government consensus, known as a biological opinion, on the effect of Englebright Dam on endangered fish.

The latest biological opinion, released this week, concurred with the U.S. Army Corps of Engineers' stance that their proposed actions to maintain and operate Englebright Dam would not adversely affect endangered fish.

It is a reversal of the stance of the previous opinion — that the dam poses a threat to endangered species — and leaves out many of the mitigation measures that environmental groups went to court to force the National Marine Fisheries Service to include.

It has left conservation groups outraged.

"(The opinion) represents 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," said Caleb Dardick, executive director of the South Yuba River Citizens League.

But the U.S. Army Corps of Engineers, which maintains the dam, said the new opinion more accurately reflects the scope of its responsibilities and funding from Congress.

The Corps has neither the funding nor Congressional authorization to carry out projects such as removing Englebright Dam or constructing a way for fish to swim over it, like the fish ladders found at the much smaller Daguerre Point Dam, said John Prettyman, Corps spokesman.

"You can tell us all day long that we need to take this out or do certain environmental studies, but we don't have the funding or the authorization to do it," Prettyman said. "It wasn't a 180-degree turn, it was just a realization that what was requested (in 2012) couldn't be done without authorization."

The new opinion also doesn't address what conservation have long maintained is at the crux of the issue of restoring the population of endangered fish — the presence of Englebright Dam itself.

"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.

The dam was left out of the opinion because it was considered a part of what's called the environmental baseline.

That means the dam was considered part of the landscape, like a rock or a stream, and not part of the Corps' project that required consultation under the Endangered Species Act by the NMFS, said Gary Sprague, a fish biologist with NMFS.

"The Endangered Species Act consultation is only to mitigate for the proposed project, not for the environmental baseline," Sprague said.

This time around, the scope of the Corps' work around Englebright Dam was much more focused on what it had authority over, Sprague said.

The project includes activities like pumping portable toilets, vehicle maintenance, dock and boat ramp repair and herbicide and pesticide control — all things that happen upstream of Englebright and therefore do not affect the endangered species, which spawn downstream of Englebright, Sprague said.

"The parties seem to have focused the consultation only on the impacts from the Corps' routine operation and maintenance of the dams, instead of their existence — consistent with federal law and policy," said Curt Aikens, general manager of YCWA. "Daguerre was constructed in 1906 and Englebright in 1941, which is well before the ESA was enacted in 1973."

It is unclear if this is the end of litigation surrounding Englebright Dam.

The 2012 biological opinion was a major victory for SYRCL (its press release following the court decision that led to its creation declared: "SYRCL, Yuba Salmon, Prevail in Court!").

Now, most of what they fought to include in that opinion, such as requiring the Corps to put fish passage over the dam and reduce predatory fish at Daguerre Point Dam, is gone.

The organization is exploring its legal options, said Patricia Weisselberg, attorney for SYRCL and Friends of the River.

The convoluted path to a ruling

Tracing the origin of the latest biological opinion for Englebright and Daguerre Point dams gets a little complicated.

The most recent opinion, released on May 12, was ordered as a result of 2012 litigation by the Yuba County Water Agency, along with Pacific Gas and Electric Co., Nevada Irrigation District, state water project contractors and several Yuba County irrigation districts.

The 2012 opinion identified dam removal and other fish passage improvements as the preferred approach to improving conditions for spring run Chinook salmon, steelhead and green sturgeon. The opinion was the result of a 2007 lawsuit by SYRCL against the National Marine Fisheries Service.

The result of that 2007 lawsuit found that previous biological opinions going back to 2002 failed to require measures that addressed impacts on endangered species from Englebright Dam.

So, NFMS came back with the 2012 biological opinion, which identified a host of mitigation measures, along with fish passage projects over Englebright Dam, to protect endangered fish.

The 2012 lawsuit by the water agency and others argued that fish passage improvements or dam removal would negatively impact water deliveries and hydropower generation.

"YCWA saw the February 29, 2012, Biological Opinion as a gross overreach based on our understanding of the facts, science and law. It improperly expanded the scope of the consultation to include impacts from the mere existence of the dams and other actions," said Curt Aikens, general manager for YCWA. "The opinion presented significant social, economic and even environmental risks for Yuba County and the surrounding region that needed to be addressed."

As a result of the 2012 lawsuit, 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.

CONTACT reporter Andrew Creasey at 749-4780 and on Twitter @AD_Creasey.

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