FOER Challenges FERC for Violation of the Endangered Species Act

On Feb 26, 2021 Friends of the Eel River filed documents with the Federal Energy Regulatory Commission (FERC) challenging a Commission order of Jan 28, 2021 for violations of the Endangered Species Act (ESA) at Cape Horn Dam, a component of PG&E’s Potter Valley Project.

FERC’s order approved a Winter Operations Plan for a newly installed set of doors at the ‘fish hotel’ at the base of the fish ladder at Cape Horn Dam. The new doors are meant to keep the ‘hotel’ from filling with rocks and sediment in high flows, which makes the fish ladder impassable until it’s cleaned out. Such closures have regularly blocked the migration of listed steelhead, an obvious violation of the prohibition of unpermitted ‘take’ under section 9 of the ESA.

FOER brought these issues to FERC’s attention in a March 2019 letter requesting FERC immediately consult with NOAA Fisheries to determine whether the problems at the fish ladder adversely affected listed salmon and steelhead, as required by Section 7 of the ESA. But FERC, a rogue agency on environmental law, refuses to admit it has a legal duty to consult under the ESA (except on the issuance of its licenses, which typically run 30-50 years).

Despite the ESA’s clear command that federal agencies consult when any action “may affect” a listed species, FERC has never yet consulted with NOAA Fisheries under Section 7 over the many problems evident at this project, California’s longest and highest fish ladder. We are demanding that FERC promptly address this critical failure to consult and act to correct these issues.

That also means dam owner Pacific Gas and Electric (PG&E) does not have a permit to take fish under Section 9, either. Interestingly, our filings also include a 60-day notice to FERC of FOER’s intent to sue under the ESA. We will follow up on this as well. Stay tuned!

Read more below:

FOER Motion to Intervene and Request for Rehearing

Cape Horn Dam Fish Ladder is Inadequate

FOER ESA 60-Day Notice Cape Horn Dam Winter Operation Plan