Karuk Tribe and Klamath Riverkeeper settle Shasta River ESA lawsuit

Karuk Tribe and Klamath Riverkeeper settle Shasta River ESA lawsuit

by Dan Bacher

On December 23, the Klamath Riverkeeper and Karuk Tribe announced the reaching of a settlement with the Montague Water Conservation District (MWCD) that will dismiss litigation the groups filed in August 2012 over the operation of the district's Shasta River dams and diversions.

The suit, filed in the U.S. District Court in Sacramento, alleged that the operation of the MWCD's dams and diversions, including Dwinnell Dam and Lake Shastina, led to the illegal killing of endangered coho salmon populations in the Shasta River. The Shasta, a major Klamath River tributary, is one of the most significant coho salmon spawning and rearing habitats in the Klamath watershed.

According to the complaint, the MWCD is violating the federal Endangered Species Act (ESA) by killing of ESA-listed coho without a take permit.

"The Agreement focuses on a new management strategy for Dwinnell Reservoir as opposed to cutting flows to irrigators so MWCD should not see a big difference in the volumes of water it diverts," according to a joint news release from the Karuk Tribe and Klamath Riverkeeper.

The Tribe and Riverkeeper said the settlement benefits both fish and farmers.

“We worked hard to find a solution that would start the fisheries restoration process but keep our neighbors in agriculture whole,” said Karuk Chairman Buster Attebery.

The settlement calls for the reimbursement of attorney’s fees and costs incurred by the litigation. It requires MWCD to pay $550,000 to Klamath Riverkeeper and the Karuk Tribe over the course of six years, beginning with an initial payment of $150,000 within 10 days of the signing of the agreement, according to Craig Tucker, Klamath Coordinator for the Karuk Tribe.

In exchange, the Karuk Tribe and Riverkeeper agree to not pursue any further litigation against the district requiring:
• the construction of fish ladders at Dwinnell Dam
• paying for fish passage measures beyond Lake Shastina
• the removal of Dwinnell Dam.

The court claim requirement will be in effect for 30 years, according to the settlement.

Historically, MWCD has diverted approximately 22,000 acre-feet of water a year on average, according to the news release. The Agreement allows MWCD to divert 20,500 acre feet of water for irrigation although in dry years they may get less and in wet years they will get more, according to Tucker.

Water models predict that average diversion over time will be nearly the same as historic average diversions.

“Since Dwinnell Dam was built in 1926, nearly the entire river has been diverted, leaving salmon high and dry,” explained Karuk DNR Director Leaf Hillman. “This has been a key factor in the decline of ESA listed coho salmon.”

The settlement will result in 2,250 to 11,000 acre feet of water being released from Dwinnell Dam for fisheries benefits each year, with the exact volume for any given year dependent on how wet the preceding winter was.

Currently, fish only receive a few hundred-acre feet of water a year in the Shasta River from Dwinnell, if any at all.

“This is a big increase in flows for fish and we expect the fisheries benefits will be seen immediately,” said Toz Soto, Karuk Senior Fisheries Biologist.

The flow plan stemming from the agreement is temporary. Under terms of the settlement, MWCD will have to develop a long-term flow plan and habitat restoration measures that will be subject to a formal Endangered Species Act permitting process that will include public input. That process will begin late in 2014.

"Litigation was a necessary but difficult route," said Konrad Fisher, Executive Director of the Klamath Riverkeeper. "We hope for a more collaborative approach to end the unlawful dewatering of other Klamath River tributaries."

The MWCD issued a press release praising the settlement, but disagreed with Fisher’s statement that the litigation was necessary.

“MWCD is pleased that the terms of the settlement agreement are consistent with the long established conservation objectives that the district has long been promoting and implementing,” according to the MWCD release. "In 2006 MWCD and other proactive agricultural operators in the Scott and Shasta Rivers attempted to acquire ESA coverage for incidental take of Coho salmon through standard agricultural operational activities in exchange for collectively protecting, expanding and enhancing Coho salmon habitat.”

“This was a community and agency supported effort intended to protect fishery resources while also preventing legal challenges against proactive family farms,” the district stated.

“However, this effort was thwarted by environmental groups, including Klamath Riverkeeper and the Karuk Tribe, that successfully sued in 2011 to prevent the implementation of the fully developed program. MWCD found it extremely disheartening to then be sued by the very entities that eliminated a locally developed program for not having the take coverage that program would have provided,” according to the release.

“While MWCD is financially strained as a result of the legal challenge, it will steadfastly meet the objectives of the agreement, meet the needs of its users, and provide water for the city of Montague. Montague Water Conservation District will not fail,” the release concluded.

Responding to the MWCD press release, Tucker said litigation was an “unfortunate but necessary means to achieve restoration.”

“Coho were listed in 1997 and nothing had been done to get take permits,” emphasized Tucker. “With this agreement we’ll now get in-river flows for fish that haven’t been seen since 1926. We’re going from 2,250 acre feet to 11,000 acre feet of water being released from Dwinnell Dam for fish. This isn't enough water to restore fishery, but is a big step in that direction."

He noted that the best solution to fish passage above the dam, rather than a fish ladder, would be a fish bypass connecting Parks Creek to the upper Shasta River above the reservoir.

The Shasta River is considered by many state, federal and tribal fisheries biologists to be one of the most important coho spawning and rearing habitats in the entire Klamath River Basin. The actions resulting from the agreement are also expected to benefit Chinook salmon and steelhead on the river.

The salmon runs have declined to low levels since Dwinnell Dam was constructed in 1928 and even more precipitous declines in recent
decades, according to biologist Thomas Cannon's "Removal of Dwinnell Dam and Alternatives Draft Concepts Report," prepared for the Karuk Tribe.

"Coho salmon runs exceeded 1000 fish in the late 1950s, but now number less than 100," said Cannon. "Chinook runs exceeded 80,000 in the 1930s, 30,000 in the 1960s, but in recent decades number less than 10,000." (http://www.karuk.us/images/docs/press/2012/SHASTA_BYPASS_REPORT_Cannon.pdf)

In some other good news for Shasta River salmon in addition to the settlement, near-record numbers of chinook salmon returned successfully to the river in the fall of 2012 despite "daunting, drought-related environmental conditions and a large number of migrating fish that increased the threat of disease," according to a news release from the California Department of Wildlife (CDFW). The Department counted more than 29,000 adult chinook salmon at video camera monitoring sites and fish weirs, making the return the largest on the Shasta River since 1962.

“Irrigation districts and individual landowners stepped up and contributed water to reduce disease risks to returning salmon,” said Neil Manji, CDFW regional manager. “The increased flow helped cool the river water and avert disease and a potential salmon kill.”

This fall the Chinook count was 8,127, the third-largest return since 2001, while the coho count was 151, the highest number since 2007.

The Shasta counts for this season ended on December 10, 2013, due to ice floes damaging the weir on December 9. (http://www.siskiyoudaily.com/article/20131217/NEWS/131219773)

A recent report detailing the effects of MWCD’s Dwinnell Dam on Shasta River fisheries can be found at: http://www.karuk.us/karuk2/images/docs/press/2012/Effects_of_Dwinnell_Dam_FINAL_Lestelle.pdf