The Public Eye

Public Eye: Does water district’s dam blocking salmon violate state law?

A fall run Chinook salmon swims upstream near Hemphill Dam in Lincoln on Friday, November 21, 2014.
A fall run Chinook salmon swims upstream near Hemphill Dam in Lincoln on Friday, November 21, 2014. Sacramento Bee file

Gary Flanagan is a retired sheriff’s deputy, so he knows all too well what’s supposed to happen when someone breaks the law.

This spring, state fisheries officials sent a letter to the Nevada Irrigation District alleging it was in violation of two sections of the state’s Fish and Game Code over a small dam near Lincoln that blocks fall-run Chinook salmon as they migrate up Auburn Ravine Creek.

After years of trying to pressure the irrigation district to build a fish passageway at Hemphill Dam so the Chinook could pass upstream to spawn, Flanagan and other salmon advocates saw the letter as confirmation of what they long suspected: The Department of Fish and Wildlife was taking it easy on the water district – to the salmon’s peril.

At a public meeting in August, the Placer County fish and game commissioner let his frustrations be known as he confronted a state wildlife official.

“Where is the teeth other than saying, ‘Pretty please’ … year after year after year after year?” Flanagan said. “You’ve got a Fish and Game Code violation that’s either a criminal violation or a civil violation. When do you take enforcement action … for not showing good faith?”

Tina Bartlett, a district regional manager for the California Department of Fish and Wildlife, replied that such calls weren’t up to her.

“We would like to use the carrot instead of the stick,” she said. “But you can only live on carrots for so long.”

The Department of Fish and Wildlife hasn’t filed a case with the Placer County District Attorney’s Office, “although we have not seen steps taken by NID to address the issues despite our continued efforts,” spokesman Clark Blanchard said in an email. “However, we have had some preliminary discussions with the DA’s office about potential violations.”

Remleh Scherzinger, the general manager of the Nevada Irrigation District, insists his agency is not breaking any laws. He says that the letter local salmon advocates obtained through a public records request was not a formal accusation, but merely the state denying a request to modify the dam so more fish could pass. He said the district has received no correspondence from the state or any other regulatory agency that it had broken any law.

“NID is committed to improving this facility to enhance and to allow fish passage beyond it,” Scherzinger said. “But we have to recognize it will take a number of years to effect the project, just given the regulatory environment we’re operating in.”

With the issue at an impasse, the Chinook running up Auburn Ravine Creek will face another fall with Hemphill Dam blocking their path. Built in the 1920s, the 6-foot-tall and 100-foot-wide dam diverts water to Hemphill Canal, which supplies farms, homes, a golf course and a retirement community near Lincoln. The fish can cross the barrier only in high flows.

More broadly, Hemphill Dam is emblematic of the struggles facing salmon in the Central Valley. Dozens of small dams and other man-made barriers, many of which predate the state’s largest reservoirs, block fish passage along river tributaries. Removing or building passageways around the impediments is considered crucial to the survival of Central Valley Chinook, particularly as water temperatures warm due to climate change. The fish need better access to cold, high-elevation water cut off in prior decades by major water storage projects, including Folsom Dam on the American River.

Relatively simple fixes at small dams can open up many miles of habitat to wild-spawning salmon. These fish serve as an important buffer against the negative effects of hatchery salmon, which aren’t as hardy as their wild kin.

But taking steps to improve fish passage around antiquated dams and other man-made diversions is far from easy. Should they try to modify existing dams to provide fish passage, water agencies are required to navigate the state’s complicated, costly permitting process.

It’s also a time-consuming and politically sensitive proposition for the state to take legal action when local water districts refuse to make the fixes on their own.

Scherzinger said his district has hardly been sitting idly. The district has contributed more than $500,000 to a $1.2 million fish-passage project that allows more fish to travel up Auburn Ravine. In the last two years alone, Scherzinger said, the agency has spent more than $100,000 on a proposal that would modify the dam to allow more fish to pass around the barrier.

But, this spring, DFW refused to sign off.

DFW spokesman Blanchard said the water district has yet to come up with a solution that would adequately allow juvenile fish to get past the dam. Because of this, he says, “returning adults will not be successful in recruiting to future generations and adult populations will continue to be composed primarily of strays from other systems.”

“We understand that and we’re working with Fish and Wildlife to come up with that long-term solution right now,” Scherzinger said.

But, in the meantime, is the district violating state law because of Hemphill? Bartlett suggests it is.

In her letter to the district denying its dam modification proposal, she wrote that the district hadn’t addressed violations to the state’s Fish and Game Code because the proposal still “prevents, impedes or tends to prevent the passing of fish up and downstream.” Bartlett wrote the district “has yet to notify” the department of its water diversion on the creek, also a violation of the state’s Fish and Game Code.

Violators of the codes are subject to jail time, fines or civil penalties.

Placer County district attorney spokesman Jeff Wilson said that an investigation into the dam is underway, but he declined to comment further.

Further aggravating fish advocates, Fish and Wildlife officials have declined to sign off on what the advocates described as a needed short-term solution. They’ve asked the state for permission to allow volunteers this fall to net salmon and move them over Hemphill Dam so they can reach upstream spawning grounds. The proposal was supported by the Placer County Fish and Game Commission and the county Board of Supervisors.

At the August Placer County Fish and Game Commission meeting, Bartlett described it as a “feel good” measure that would only serve to unnecessarily stress out the fish while providing little benefit.

She said that for now, there’s adequate spawning and rearing habitat below Hemphill Dam to accommodate the limited numbers of fall-run Chinook that have been counted in the creek. Noting that the fall-run isn’t endangered, she said, fisheries officials need to focus their attention elsewhere to help drought-stricken endangered fish. She encouraged the water district to apply for grants from the Proposition 1 water bond to offset the costs of building a fish passageway at the dam, which she described as the ideal, permanent solution.

Flanagan, the game commissioner and former sheriff’s deputy, said the state refusing to pursue a legal case is frustrating enough, but there’s no reason for the agency to pass up the free labor offered by Save Auburn Ravine Salmon and Steelhead, a local nonprofit. The group has enlisted a fisheries biologist who says he would help corral and move the salmon, keeping the stress of the handling at a minimum.

“They’re looking a gift horse in the mouth,” he said. “They don’t want to do it. They don’t want anyone else to do it, either.”

Ryan Sabalow: 916-321-1264, @ryansabalow.