Winter 2013

Lawsuit Challenges Yuba River Dam Removal

A year ago the National Marine Fisheries Service (NMFS) issued a biological opinion (BiOp) for two dams on the lower Yuba River to improve conditions for 3 threatened fish species that many have negative impacts on rural Yuba County and surrounding farmland.  Yuba County Water Agency (YCWA), which supplies water in the region, laid out numerous concerns about the BiOp early last year.  In November, YCWA announced that they had given a 60-day notice to file a lawsuit against the federal government in hopes that they would be able to negotiate reasonable operations of the dams.  Unfortunately, they were unsuccessful; YCWA filed a lawsuit against the National Marine Fisheries in recent weeks. 

The 2012 BiOp forces the Army Corps of Engineers to develop a plan to allow for fish to migrate past Daguerre Point and Englebright Dams.  Daguerre Point currently has a fish ladder operating, but the BiOp asserts it does not allow for steelhead to pass.  The BiOp states that the “preferred alternative” to protect the fish is removal of both dams. 

Both Daguerre Point and Englebright Dams were constructed to prevent debris from the Gold Rush-era mining from damaging the river channel and fish habitat, flood protection and to supply irrigation water to over 100,000 acres of farmland. 

The YCWA suit maintains that no consideration was given to how the 28 million cubic yards of contaminated sediment stored behind Englebright Dam would be handled if the dam was removed.  It also calls for unreasonable timelines to comply with “reasonable and prudent alternatives”.  The BiOp gives the Corps the authority it does not have currently have to remove the dams and impact hydropower operations in the Yuba River watershed.  The lawsuit also charges that NMFS violated the Federal Endangered Species Act and the Administrative Procedures Act when it prepared the 2012 biological opinion. 

The lawsuit states, “the 2012 BiOp has resulted in, and will continue to result in, severe and irreparable damage to YCWA’s economic and environmental interests on the Yuba River until it is replaced with a new BiOp that is consistent with the ESA and other applicable provisions of law.”

Roger Abe, chair of the YCWA Board of Directors, said the biological opinion threatens the water agency’s operations as well as the region’s economy and environment.  “We believe the court will recognize the errors and flaws in this NMFS opinion and direct it to prepare a new one that is legally and scientifically credible,” Abe said in a statement.

The biological opinion also jeopardizes the water agency’s ability to manage 17-party Lower Yuba River Accord that was signed just years earlier. The Lower Yuba River Accord was an effort to end over 20 years of infighting between farmers, cities and environmental interests over water use. NMFS supported the agreement and Governor Schwarzenegger hailed it as a huge success.     ■

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