Steelhead Preservation Efforts Continue, And So Too Does Litigation
Steelhead fish, or sometimes referred to as steelhead trout, is the anadromous form of coastal rainbow trout that is native to cold-water tributaries of the Pacific coast (among other places). Steelhead spawn in freshwater, migrate to the ocean to forage for years, and then return to their original streams to spawn. As populations and related water supply demands increased, construction of reservoirs and dams increased, thus creating challenges in some areas for steelhead to migrate from the ocean to spawn on local streams.
Various public and private sector groups have worked hard to combat those challenges. This article highlights two approaches to illustrate how the steelhead challenges are approached, one by voluntary efforts and the other through litigation, the latter of which sometimes “spawns” voluntary efforts. To be clear, the examples below are unrelated so that the entities from one example should not be construed as against or otherwise implicated with the entities from the other example.
The Yuba River
The Yuba River is a major tributary of the Feather River, which is part of the Sacramento River system. It has three branches: North Yuba, Middle Yuba, and South Yuba. Historical activities like gold mining reduced salmon and steelhead populations. The river has several large dams and reservoirs, including New Bullards Bar and Englebright. The main challenges include preserving or enhancing spawning and rearing habitats, managing water temperatures for successful spawning and rearing conditions, and mitigating predation by other fishery and riparian species.
Several short-term and long-term actions have been utilized for decades to help recover steelhead (and salmon) populations, such as improving habitat conditions, establishing monitoring stations, and planning for a conservation hatchery. In what is widely referred to as The Yuba Accord, this landmark, multi-agency agreements seeks to balance the interests of environmental groups, agriculture, water agencies, and hydroelectric operators. Controversy started in the 1960s, followed by litigation in the 1980s, and eventually the Accord was reached and took effect in 2008.
Incidental Take Litigation Against California Departments of Water Resources, and, Fish and Wildlife
Filed toward the end of 2024 in Sacramento County, captioned as California Sportfishing Protection Alliance, et al. v. California Department of Water Resources, et al. (Superior Court Case No. 24WM000181), the petitioners commenced this action under the California Environmental Quality Act (CEQA) against two state agencies (California Department of Water Resources (DWR) and California Department of Fish and Wildlife (CDFW)). The petitioners include the California Sportfishing Protection Alliance, North Coast Rivers Alliance, San Francisco Crab Boat Owners Association, and the Winnemem Wintu Tribe.
The gist of this lawsuit is to set aside the approval of a plan for the long-term operation of the State Water Project (SWP) by DWR and CDFW, and relatedly the “Incidental Take Permit” (ITP) for the State Water Project. The petitioners argue that the approval violates CEQA, the Delta Reform Act, the California Endangered Species Act (CESA), and the Public Trust Doctrine. They seek a writ of mandate to vacate the project approvals, decertify the Final Environmental Impact Report, and ensure compliance with the relevant environmental laws.
Ultimately and naturally at this early stage of the litigation, the outcome is unknown and frankly unpredictable. What is somewhat predictable, based on common sense coupled with historical examples in these complex environmental matters, is that the judicial process will either create the final resolution or the process will go far enough through the trial and/or appellate court proceedings such that the parties work toward a long-term, durable solution on terms and conditions that are mutually satisfactory.