By Michael Gennaro, Courthouse News Service
The Army Corps of Engineers argued for the second time Thursday that a Northern California fisheries biologist had no concrete evidence that Coyote Valley Dam harms endangered chinook and steelhead salmon.
The dam guards the city of Ukiah from flooding from nearby Lake Mendocino, but Sean White, a fisheries biologist, claims that the dam’s flood control operations violate the Endangered Species Act and jeopardizes salmon populations.
White says that sediment stirred up by water rushing in from the dam can increases the turbidity of the water, resulting in abrading and clogging of gills, and indirectly causes reduced feeding, avoidance reactions, destruction of food supplies, reduced egg and alevin survival and changed rearing habitat in the fish.
In October 2023, U.S. District Judge Jacqueline Scott Corley denied summary judgment to White. The judges said he had failed to show that the dam was harming the fish or that any injunction could remedy any hypothetical harm.
White refiled a motion for summary judgment, claiming that the Corps violated Section 9 of the Endangered Species Act by unlawfully taking listed salmonids, and that the defendants are in violation of Section 7 of the Endangered Species Act by not consulting with National Oceanic and Atmospheric Administration to ensure flood control operations at Coyote Valley Dam do not jeopardize the continued existence of the fish or their habitat.
At Thursday’s hearing, both sides echoed their points from October’s motion hearing.
The Corps argued against White’s unlawful taking claims, saying that he had once again not provided proof of any discretionary action that the dam took that harmed the salmon, and that there was no reliable data to suggest that the dam’s flood-control operations increased the turbidity of the water.
“The mere existence of the dam’s structure is not an action,” Briena Strippoli, representing the Army Corps of Engineers, said, noting that it was the plaintiff’s burden to prove a proximate cause of harm to the fish.
She said that White’s data was incomplete and that some data contradicts it. This data, Strippoli said, did not show definitive trends that the turbidity of the water near the dam harms the salmon.
“Turbidity is extremely complex, there’s a lot that goes into it,” Strippoli said, while noting that the National Marine Fisheries Service was in the process of finishing a new biological opinion on the matter.
“We’re operating on limited evidence, and you have to do more than that,” Strippoli said.
Corley asked White’s attorney, Philip Williams, if he could name a proximate cause of harm to the fish.
“It is the storage of water by the dam that increases turbidity,” Williams replied. He said when the dam releases water, the sediment stirred up flows downstream, harming the salmon, and that any operation at all of the dam’s flood control causes harm.
The Corps also said that violations related to the lack to consultation should be ruled as moot because formal consultation of the flood control operations is underway and should be completed by August 2024.
Corley seemed to lean towards that argument, noting that the rainy season is over and that there likely would be no flood-control releases from the dam until December at the earliest. White agreed that those claims would be moot if the formal consultation is done by August.
“If it’s not done by August, if we get to the rainy season … There could be something done to protect the fish in the meantime,” Corley said.
White argues that the dam still has an obligation to protect the fish in the meantime before the consultation is complete.
He recommended that the dam should be forced to ensure that any flood control releases have only 20% background turbidity, a standard he said is enforced on other rivers “across the board.”
Corley asked Williams what the Corps should do if the turbidity was too high.
Williams replied that they would come back to court and find a different way to operate the flood control and “modernize” the dam.
“Why should we address this when there’s not going to be flood control between now and December?” Corley said in a perplexed tone. “Why shouldn’t we wait and see if the consultation is done by then?”
She said that she would not issue any injunction in the meantime, and took the matter under submission.
