[CN] – Despite federal findings that a water diversion dam on the Santa Clara River harms several protected fish and bird species, the dam operator refuses to update its infrastructure, environmentalists say in a lawsuit against a conservation district.
Built in 1991, the 25-foot-high Vern Freeman Dam spans 1,200 feet across the Santa Clara River, about 10 miles from Ventura and the Pacific Ocean. The closest city to the dam is Saticoy.
The Wishtoyo Foundation and the Center for Biological Diversity sued the United Water Conservation District under the Endangered Species Act, in Federal Court. The June 2 lawsuit challenges “diversion of flows that deprives fish, especially steelhead, of the ability to migrate to spawning grounds, and deprives native birds of their habitat,” Wishtoyo staff attorney Jason Weiner said in an interview.
The environmental groups say that proper operation of the dam will not only preserve steelhead and endangered bird species, but can send enough water downstream for agricultural and municipal uses in the Oxnard Plain.
“Restoring these species to the Santa Clara River is vital to providing nearby residents and the river’s marginalized communities, especially Latinos and the Chumash people, with their right to enjoy and benefit from healthily functioning ecosystems,” Weiner said.
United’s general manager Mauricio Guardado defended the district’s conservation efforts.
“We at United are very disappointed and very troubled because this lawsuit appears based on misinformation,” Guardado said in an interview.
“We are good environmental stewards and take our duties under the Endangered Species Act very seriously.”
Guardado said United in developing a modified fish ramp to help steelhead migrate upstream, and creating a multi-species habitat control plan that is 60 percent complete.
“What’s so troubling about this lawsuit is that it will only delay these efforts,” Guardado said. “We have already spent millions in general public funds, and a delay will only put the steelhead in a more vulnerable state and lead to more use of public money.
“We want to continue to perform and adhere to our role and responsibilities at the site, but the lawsuit will make that much more difficult.”
Guardado said that environmental groups frequently accuse agencies such as his of making excuses for lack of environmental stewardship, but that United has made a point of making its monthly reports public and has a department of biologists, ecologists and engineers devoted to environmental protection.
“We’re so disappointed because we’ve done a lot. We have a goal and a plan and are working side by side with regulatory agencies. We assembled a fish panel of world renowned experts for this purpose and put millions of dollars toward this effort, which hopefully won’t go to waste,” Guardado said.
“These are comprehensive and complex issues. We haven’t ignored them and have taken full responsibility for them. We hope that Wishtoyo will respect that effort and the general public, who will ultimately be the ones paying for these incorrect assumptions.”
In July 2008, the National Marine Fisheries Service issued a biological opinion finding that the dam’s operation impeded steelhead migration to upstream spawning grounds. Though nearly eight years have passed, United has done nothing to stop unauthorized “take,” or harm, of protected species, according to the 82-page lawsuit.
Water diversion also significantly reduces downstream flows to the Santa Clara watershed, degrading the riparian habitat that several protected bird species, including the least Bell’s vireo, southwestern willow flycatcher, and yellow-billed cuckoo, depend on for survival, the complaint states.
The groups say they are suing to stop all unauthorized take caused by the dam’s operations.
The Santa Clara is one of the last Californian rivers still in a relatively natural state. It flows 83 miles from its headwaters on the northern slopes of the San Gabriel Mountains through sagebrush and grassland to empty in the Pacific Ocean just north of the Los Angeles Basin.
Steelhead salmon are silvery-green fish with dark spots that live up to 11 years and can reach 20 lbs. Steelhead are the same species as rainbow trout, but steelhead are anadromous: They are born and reproduce in fresh water, but spend their lives in the ocean. Rainbow trout stay in fresh water.
Though the Santa Clara once supported thousands of steelhead, its populations have steeply declined due to overfishing, water pollution, and habitat loss from dams and other forms of water diversion. The Fisheries Service listed steelhead as endangered in 1997 and reaffirmed the listing in 2006.
As one of the last remaining watersheds to support a relatively large steelhead population, the Santa Clara watershed and its tributaries are vital to the protection and restoration of the species, the groups say.
They claim the dam and its ineffective fish ladder is the biggest obstacle to steelhead migration: that only nine fish passed through the ladder from 1994 to 2004 and a mere two in 2012.
Among other things, turbulent flows at the dam’s base distract steelhead from the fish ladder, creating a passage bottleneck; sediment buildup can block the fish ladder; screens do not exclude juvenile fish, creating a high risk of injury; exit conditions impede upstream migration to spawning grounds; and dam infrastructure prevents kelt steelhead from returning to the estuary, according to the complaint. Kelt steelhead are adults trying to return to the ocean after spawning.
In addition, water diversion often eliminates river flow during critical migration periods and creates fluctuating water levels that leave fish stranded, increasing mortality rates, the complaint states.
To address these harms, the Fisheries Service found in its 2008 biological opinion that United must physically modify the dam to create “a continuous freshwater migration corridor” that promotes unimpeded steelhead migration.
The environmentalists say United never bothered to adopt these recommendations, and releases flows at levels below the quantity, timing, and duration required by the opinion. Nor has it investigated findings from an expert panel indicating that removing the dam would best facilitate migration and restore steelhead population numbers in the estuary.
Though United favors the alternative of building a hardened rock ramp over the face of the dam, the ramp is less than 30 percent designed and the upstream access way is still a nebulous idea, according to the complaint.
The groups seek declaratory judgment that United violated the Endangered Species Act by taking listed species without authorization, a temporary restraining order, and an injunction forcing it to apply for an incidental take permit under the Endangered Species Act.
Four years ago the same plaintiffs filed a similar complaint against a massive development slated to be built along the Santa Clara River, upstream from the Vern Freeman Dam.
Developed by Newhall Land and Farming, the proposed 12,000-acre Landmark Village at Newhall Ranch would house up to 60,000 people in 1,411 dwelling units, including 1,136 multi-family units, and include 1 million square feet of mixed commercial use for schools, parks, golf courses, shopping centers, and other amenities.
The environmentalists claimed the project would permanently damage the river’s ecosystem, promote greenhouse gas generation, degrade air and water quality, and destroy wildlife habitat.
John Buse, an attorney with the Center for Biological Diversity, summarized the procedural history in an interview.
Though Los Angeles County Court set aside the 5,828-page environmental impact report, the Second Court of Appeal overturned the ruling and found that the report accurately and adequately analyzed impacts to the endangered plant and wildlife and Native American cultural artifacts in the project area.
The environmentalists appealed to the California Supreme Court, where they prevailed on the issue of the flawed analysis of greenhouse gas emissions. A hearing to determine what happens next in that case is scheduled for Thursday.
“At this point it’s unclear what will happen to the project,” Buse said.
The plaintiffs will say at the hearing that the project’s environmental analysis on greenhouse gas emissions is legally defective, so project approvals must be invalidated.
“The project in its current form is 20 years out of date and based on outdated legal and factual assumptions,” Buse said. “Given the amount of time that has passed, we’re looking at some other configuration of a development plan, if it will go forward.”
Many of the plaintiffs would like to see the site undeveloped, but that is unlikely.
“It’s very likely that some development is possible and can be accomplished reasonably, but we haven’t seen it yet,” Buse said.