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NW Fishletter #354, February 1, 2016

[7] Environmental Groups Sue Owners Of Electron Dam

American Rivers and American Whitewater filed suit Jan. 12 against the new owners and managers of Electron Dam in Washington, alleging unauthorized killing of ESA-listed Puget Sound Chinook, steelhead and bull trout. The complaint says Electron Hydro "is using the dam to generate revenue while ignoring its responsibility to comply with the Endangered Species Act and protect these species."

Defendants in the federal lawsuit are dam owners Electron Hydro, Tollhouse Energy Co. and investor-manager Thom Fischer. Fischer is also president, secretary, treasurer and chairman of Tollhouse Energy, according to the complaint.

Andrea Rodgers of the Western Environmental Law Center represents the plaintiffs.

The complaint describes the impact of the 25.5-MW-capacity Electron Dam as killing Chinook, steelhead and bull trout when the forebay is drained to remove debris and sediment and when the fish pass through the trash rack (at the powerhouse entrance) and become entrained in the penstocks or turbines.

To allow killing or "incidental take" of ESA-listed fish by the hydro facility, Section 10 of the ESA requires a Habitat Conservation Plan.

A 1984-published photo of the 10-mile-long wooden flume at Electron Dam.
A 1984-published photo of the 10-mile-long wooden flume at Electron Dam.

Puget Sound Energy, the owner of Electron Dam until 2014, started a conservation plan in 2008, but suspended its effort in 2011. The utility has a power purchase agreement with the new owners that runs through 2026, for 12.5 MW through November 2016 and 23.8 MW thereafter. The Puyallup River Chinook and bull trout were listed under the ESA in 1999, and the steelhead in 2007.

According to the complaint, "[i]n 2013, Thom A. Fischer met with NMFS staff, anticipating purchase of the project, to discuss effects of the project on ESA-listed fish.

"On December 4, 2014, NMFS [National Marine Fisheries Service, aka NOAA Fisheries] wrote Thom A. Fischer: 'The Electron project kills and harms ESA-listed Chinook salmon and steelhead.' NMFS wrote: 'We expect you will agree that the project needs to soon implement measures to avoid or greatly minimize ongoing take.'"

"Neither the federal government nor the company [Electron Hydro] have done anything to improve fish survival at the dam," Russ Ladley, resource project manager for the Puyallup Tribe, told NW Fishletter. "The new company spent $7.9 million on the flume that conveys water to the powerhouse, but nothing so far for fish passage."

Describing the tribe's work with previous owner PSE, he said they agreed in 1997 to increase fish numbers above the dam. This joint effort included the installation of a fish ladder, which was completed in 2000.

Asked what Electron Hydro could do to improve fish passage above the dam, Ladley responded, "Install proven screen technology. It's expensive, but not that hard."

NW Fishletter reached Electron Hydro, but no one there was made available for comment.

The plaintiffs seek declaratory judgment for violation of the ESA and an order requiring the dam to stop diverting water from the Puyallup River until it obtains immunity from take liability from NOAA Fisheries and the U.S. Fish and Wildlife Service [L. B.].

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