Feds Settle Dead Steelhead Lawsuit

When average citizens kill federally endangered steelhead trout without first obtaining “taking” permits, they can be fined up to $10,000 per fish. But when the federal Bureau of Reclamation accidentally killed an alleged 393 juvenile trout two years ago along a short stretch of creek right below Lake Cachuma, the Bureau got off by agreeing to do what it had already been mandated to do 15 years before: keep enough water in the creek to prevent the fish from croaking.

To that end, the Bureau agreed to install two functioning electrically powered pumps to keep the creek — Hilton Creek — flowing with two cubic feet of dam water a second and two diesel powered emergency back-up pumps in case the two main pumps failed. In addition, the Bureau agreed to install the electronics necessary to automatically activate the back-up pumps whenever the main pumps fail, which they reportedly did at least nine times in 2013. With the failure of those the pumps, the mile-long stretch of creek was transformed into thick viscous mud, lethally stranding 393 steelhead. In addition, another 634 had to be rescued — often in the black of night — by Cachuma Operations and Maintenance Board employees, forced from their beds to pluck flapping fish from the mucky creek.

The deal was announced this past week in response to a lawsuit filed by Cal Trout, a steelhead advocacy group represented by the Environmental Defense Center (EDC), and joined a handful of water agencies who depend on Lake Cachuma — aka Bradbury Dam — for their supplies. Those agencies were worried less about the steelhead themselves than they were that the Bureau would bargain away their water rights as part of any settlement. That did not happen.

EDC attorney Nicole Di Camillo said the settlement will protect a small but vital spawning ground for the anadromous fish, meaning they’re hatched on inland creeks and rivers, flow out to the ocean and then swim back up their channel of origin to spawn and lay eggs of their own. “It’s an important victory, but it’s only a part of a bigger puzzle,” she said. “Obviously, Bradbury Dam screwed up the whole watershed. This addresses a part of that.”

By all accounts, The Santa Ynez River was once one of California’s premier steelhead waterways, but with the construction of Bradbury Dam — the primary water supply for south coast water agencies — in the late 1940s, the river was blocked and prime upstream habitat for the fish was effectively blocked off. Steelhead populations plummeted to the point that the federal government declared them an endangered species in the 1990s. Since then, fish advocates, local water agencies, and federal regulators have been embroiled in non-stop bureaucratic trench warfare over what steps need be taken to help bring the steelhead back from the brink of extinction. In 2000, the National Marine Fisheries Service issued a “Biological Opinion,” decreeing, among other things, that Hilton Creek — a short stub of a tributary that runs from the base of the dam south past Highway 154 — be kept wet and cool enough to sustain juvenile steelhead populations so that they can grow large enough to make their morphologically transformative — the fish come back bigger, thicker, darker, and with more protruding lower jaw — ocean journey.

In the exceptionally charged world of water rights, the term “Biological Opinion” carries nothing less than apocalyptic connotations to water agencies who depend upon the river for their supplies. Fish advocates, on the other hand, look to such opinions to sustain a species hanging on by the hair of its mitochondrial DNA. The agency charged with the responsibility of issuing such opinions is the National Marine Fisheries Services, or NMFS. For the past several years, NMFS has been threatening to release a new and scientifically updated Biological Opinion that will regulate water released on the Santa Ynez River and its tributaries in response to steelhead population trends. The draft of this opinion was supposed to be released sometime this past summer, but for a host of reasons, the date keeps getting pushed back. The general expectation is that the new opinion will require greater sacrifices by the water agencies to help bring back the steelhead. At any time, this would prove controversial, but during intense droughts such the one now searing California, it’s especially so.

Officials with the Cachuma Operations and Maintenance Board (COMB), which is responsible for implementing fish recovery efforts mandated by the Biological Opinion, speak with ebullience and effervescence of the success they’ve had generating steelhead on the Hilton Creek. The more persuasive they are, the less NMFS will feel compelled to order more water released for the fish. But many fish advocates grumble that COMB’s efforts thus far have generated only a small handful of juveniles each year, and only a few of them ever achieve the physical maturity needed to make it to the ocean. Nor does it help any that many of the juvenile steelhead wind up getting eaten by bass and catfish — exotic species not native to the river — that have established populations in the lower stretches of the Santa Ynez. They’ve been pushing for the creation of a fish ladder or trucking system to haul the steelhead from the lower stretches of the river to the upper reaches above the dam and back again. These approaches would not only cost more, but could cut into the amount of water available for human consumption.

While there’s little agreement between water agencies and fish advocates on a host of issues, all sides agree that the process by which the Biological Opinion is rendered effectively excludes local interest groups from participating if even to give their two-cents worth. (By law, MNFS must consult with the Bureau of Reclamation only and that none of the local water agencies or interest groups have so much as a seat at the table from which to lodge their concerns.) This settlement agreement modifies that in small but significant ways. Now, when NMFS gets around to issuing its draft new Biological Opinion, the settlement requires that Cal Trout have 45 days to respond. That’s new. In addition, it requires that all the water agencies that qualified as intervenors in the dead steelhead lawsuit — Cachuma Conservation Release Board and the Santa Ynez River Water Conservation Board ID 1 — be afforded the same preview. According to EDC’s Di Camillo, the settlement allows Cal Trout and the other intervenors to submit comments in response to the draft Biological Opinion. It does not, however, require, NMFS to respond.

As part of the settlement, the EDC — as prevailing party — will be entitled to recover its legal costs from the federal government. What those are, Di Camillo said she did not know yet.

When the fight over the faulty pumps and dead steelhead first surfaced, it marked a dramatic shift in conflict resolution among two vast, opaque, and critical bureaucracies. Randy Ward, until recently the director of COMB, sent out such blistering letters to the Bureau of Reclamation — excoriating officials for failing to maintain the pumps in working order — that at least one local water agency director demanded he eat his words and write an apology. Ward emphatically did not. Typically such disputes are waged quietly behind the scenes and safely out of media earshot. In response, the Bureau dispatched two regional big shots to Lake Cachuma last summer for a high-profile Kumbaya session to see whether the assorted hatchets could be buried someplace other than the Bureau’s instituional back. The results were mixed at best. Ward has since resigned as COMB executive, and relations between COMB and the Bureau have reportedly grown more collegial. Two weeks ago, the Bureau quietly dispatched the same two regional hot shots to a COMB meeting and reportedly all in attendance made nice.

Ward’s frustration was in part the length of time it took the Bureau to respond to the broken pumps. The nine failures took place in early 2013; the Bureau didn’t get around to really addressing the problem until September 2014. But more strategically, if endangered fish were dying by the hundreds in Hilton Creek — COMB’s marquee fish restoration project — then NMFS might require more stringent sacrifices from COMB and the five water agencies that depend on Lake Cachuma when crafting its Biological Opinion.

Whatever the motivations, Ward’s confrontational approach has had its detractors. Some in COMB argued that if COMB went out and fixed the faulty pumps itself — even though the pumps are technically the Bureau’s responsibility — the work could be done quicker and cheaper. That, reportedly, is the way it’s always been done. But Ward was insistent that COMB not be stuck with the costs of repairs, and given there was a split among COMB boardmembers on how to proceed, Ward prevailed. At this point, it remains uncertain how much the Hilton Creek pump repair project will cost, but a couple of COMB boardmembers estimate it’s the neighborhood of $1 to $2 million. Whatever it is, that cost will be passed on to COMB. When asked whether COMB and Ward should have tried another approach, COMB boardmember Dale Francisco — also a member of the Santa Barbara City Council — stated, “In hindsight, that looks like an excellent plan. Let’s do it.”

In the meantime, the pumps are currently working and 1.5 cubic feet of water a second are being released down Hilton Creek for the benefit of the steelhead.