On September 23, 2018, federal Judge David Carter issued a ruling requiring that United Water Conservation District complete evaluation of two design options for improving fish passage at the Freeman Diversion Dam by January 31, 2020. Further, the court ruled that construction of the preferred option be completed within two years. The ruling was made in response to a lawsuit brought in June, 2016 by the Wishtoyo Foundation and the Center for Biological Diversity (CBD) claiming that United was in violation of the federal Endangered Species Act (ESA). “Continued operation of (the dam) … contributes to increase the extinction risk to endangered steelhead by reducing and at times eliminating migration opportunities and success for endangered steelhead, and precluding migration of this species to historical spawning and rearing habitat, leading to spawning failure in the Santa Clara River watershed,” Carter wrote.
The Southern Steelhead was listed as federally endangered in 1997. Friends of the Santa Clara River, along with the Santa Clara River Steelhead Coalition, has worked for many years to promote recovery of this iconic anadromous fish.
In order to legally operate the dam facility, which is located about 10 miles from the ocean on the main stem of the Santa Clara River, United must also complete a Multi-Species Habitat Conservation Plan (MSHCP) and obtain an incidental take (kill) permit under Section 10 of the ESA. United has been working on the MSHCP for several years and will need to incorporate and consider Judge Carter’s ruling in its finalization. The top two alternatives under study for dam modification for fish passage are a hardened ramp and a half-height dam notch. The notch concept, as proposed by Northwest Hydraulic Consultants (NHC), is the less expensive option. It would involve the use of rubber gates for flow control through the notch and envisions eventual river profile adjustment to match the notch depth. Cost of the notch alternative was estimated by NHC to be approximately $32.5 million.
According to John Buse, an attorney for CBD, the decision itself will not bring the Steelhead back. “It’s the start of things instead of the end of things, but that start is important,” he said. “The Steelhead in the Santa Clara River are the key to recovering steelhead throughout Southern California. This is kind of the keystone population. If we can bring back some fraction of the historic Steelhead runs that we once saw in the Santa Clara River, that’s good news not just for Ventura County but for other areas of Southern California, as well.” (Ventura County Star, Claudia Boyd-Barrett, October 2, 2018). In fact, the North America Salmon Stronghold Partnership under the auspices of the Wild Salmon Center, considers the Santa Clara River watershed a stronghold watershed for Southern California steelhead.
Mauricio Guardado, general manager for the United Water Conservation District, has been quoted (Ventura County Star, Claudia Boyd-Barrett, October 2, 2018) to the effect that the water agency had already been working with the National Marine Fisheries Service on getting a design and permit finalized for new fish passage infrastructure. Guardado claimed the lawsuit cost about $2 million in legal fees and amounted to a waste of ratepayer money. However, he also said the ruling does provide a hard deadline for the fish passage project, which should help spur faster action from the federal government.
However, this is not the first ESA litigation for United Water Conservation District with regards to fish passage at Vern Freeman Diversion since its construction in 1991. In 2008, fish and watershed advocacy organization California Trout, brought a litigation against United Water Conservation District alleging violations under the federal Endangered Species Act. The lawsuit was settled on terms to create a fish passage technical advisory committee to study and recommend fish passage alternatives. Despite the Vern Freeman Dam Fish Passage Conceptual Design Report being finalized in 2010, very little progress had been made on the MSHCP to develop a preferred alternative taking stakeholder input into consideration. In 2014 United released a notice of preparation of a draft Environmental Impact Statement for their MSHCP, which selected a hardened fish ramp as the fish passage alternative. CalTrout and many members of the Santa Clara River Steelhead Coalition conveyed their concern about United pursuing the hardened fish ramp and not fully exploring the notched and/or damless diversion options identified in the 2010 report. Especially as in 2013, Stillwater Sciences prepared a Technical Memorandum on Freeman Diversion Dam Removal Sediment Transport Modeling for the Coalition. This report was shared with United as an alternative supported by the environmental community. After the 2010 CalTrout settlement, very little concrete progress was made to resolve passage and incidental take associated with the operations of the diversion. In June 2016 Wishtoyo and CBD filed suit as fish passage under certain flow conditions and incidental take had still not been resolved in a finalized MSHCP.
In October 2016 NHC completed an Evaluation of Vern Freeman Diversion Dam Modification Alternatives report – comparing the hardened ramp, notched alternative, and an infiltration gallery. Judge Carter’s September 2018 ruling has set court mandated deadlines in association with the hardened ramp and notched alternatives being finalized for implementation. This is vitally important, as in 2018, CalTrout released their State of Salmonids Report II, concluding that the state of Southern California Steelhead is critical with the species being extinct within 25-50 years. When an operator is negatively impacting the Southern Steelhead stronghold population for the region (Santa Maria River down to the US-Mexico border), we at FSCR don’t consider that a waste of taxpayer money but a necessary action to protect a part of our Southern California heritage.
An unfortunate outcome of this litigation is that existing restoration funding (Prop 1, 68, etc.) cannot be used to mitigation litigation outcomes. Had United embraced stakeholder feedback and input, there would have been opportunities for United to work with the Santa Clara River Steelhead Coalition to fund the design and implementation of an alternative more stakeholders could support, as is the case in our neighboring Ventura River watershed (i.e., with the Matilija Coalition and Ventura County Watershed Protection District partnering on Matilija Dam removal).
Our only hope is that United will learn from the outcomes of these two ESA litigations, as currently the fish passage alternatives associated with Santa Felicia Dam’s FERC relicensing process lags 12+ months. We trust stakeholder feedback and input will be welcomed to that process. The environmental community is advocating for multi-benefit projects that can be a win-win for both agriculture and environmental uses and users. Especially in light of the SGMA rates being imposed by GSA’s statewide, we want to avoid putting further burden to United’s ratepayers, as a result of litigations, when win-wins can be co-founded through collaborative effort.
Ron is the founder and board member of Friends of the Santa Clara River. Ron is also a board member for the Santa Clara River Conservancy. Candice is a board member with Friends of the Santa Clara River and a Director on the Fillmore and Piru Basins Groundwater Sustainability Agency. Both are members of the Santa Clara River Steelhead Coalition.
Friends of the Santa Clara River 