Dwinnell Lawsuit Settlement and the future of Shasta River Salmon

On December 20th the Karuk Tribe and Klamath Riverkeeper issued a joint press release announcing settlement of a lawsuit they filed in federal court in 2012 challenging the legality of Dwinnell Dam and Reservoir. Dwinnell Dam is located on the Shasta River, a major Klamath River tributary. The dam and associated facilities are owned and operated by the Montague Water Conservation District (MWCD).

 Dwinnell Dam and Reservoir from the air

Press reports on the settlement where universally positive, mirroring claims and quotes from the press release. The article reporting on the Settlement in the ECONEWS was written by Craig Tucker, the Karuk Tribe's Klamath River Coordinator, one of the principle architects of the Settlement. Only the Two Rivers Tribune suggested that there might be another view; it quoted from an e-mail by KlamBlog editor Felice Pace which called the Settlement a sell-out. In a letter to the TRT Pace has since apologized for using the term "sell-out" while continuing to question whether the Settlement is in the interest of Klamath Salmon.

In this post KlamBlog provides readers with information on the Settlement, and how settling parties have characterized it, as well as information on the impact of Dwinnell Dam, Dwinnell Reservoir (also known as Lake Shastina) and associated operations on Shasta River water quality, aquatic habitat and salmon. 

Whenever possible this post quotes directly from reports prepared by experts for the Karuk Tribe and Klamath Riverkeeper. In accordance with KlamBlog's mission, the aim is to provide KlamBlog readers with the information and analysis needed for them to reach their own conclusions about the settlement and whether it is in the best interest of Klamath Salmon.

Here are the major reports relied upon in this post, including on-line links to them:

• "Removal of Dwinnell Dam and Alternatives", Prepared by Thomas Cannon for the Karuk Tribe, December 2011. The report is available at this link. 

• "Effects of Dwinnell Dam on Shasta River Salmon and Consideration for Prioritizing Recovery Actions", Prepared by Larry Lestelle for the Karuk Tribe, March 2012. The report is available at this link.
  
  
• "Request for Recognition of Shasta River as Flow Impaired and Addition to the 2012 California 303d List", prepared by Patrick Higgins for Klamath Riverkeeper, Institute for Fisheries Resources, Pacific Coast Federation of Fisherman Associations, the Environmental Protection Information Center and the Klamath Forest Alliance, August 2010. The report is available at this link.

The Impact of Dwinnell

Completed in 1928 without fish ladders or a by-pass channel, Dwinnell Dam blocks salmon and steelhead access to roughly 20% of the Shasta River watershed, including 10 miles of the Shasta River. It also blocks access and reduces flows in Parks Creek, a key Shasta River salmon tributary. Here is how the lawsuit complaint filed in 2012 describes Dwinnell and its operations:

 

           Dwinnell Dam is located at approximately Shasta River Mile 40.6. Dwinnell Dam was built to impound 74,000 acre feet and currently impounds approximately 50,000 acre feet. Lake Shastina captures the majority of runoff from the upper Shasta River watershed in most years, as well as a substantial portion of the flow of Parks Creek through the Parks Creek diversion ditch. 

          MWCD conveys water stored in Lake Shastina to the Cities of Shastina and Montague and to farmers and ranchers through a 60-mile long canal and ditch system. MWCD also occasionally releases water from Lake Shastina downstream into the Shasta River to meet specified irrigation demands immediately downstream in the Shasta River. Typically, MWCD releases 6 to 10 cubic feet per second ("cfs") for this purpose from early April through early September. Releases of up to 3 cfs typically continue until about mid October. In addition, water from Lake Shastina seeps through Dwinnell Dam into the Shasta River downstream.

           MWCD also owns and operates the Parks Creek diversion ditch, which MWCD uses to divert most of the flows in upper Parks Creek to Lake Shastina during at least some portion of the year (typically from October through June), thereby reducing potential cold-water inputs into the habitat reaches below Dwinnell Dam and decreasing the quality and quantity of habitat downstream from the diversion point in both Parks Creek and the Shasta River.

Aerial view of the Upper Shasta River Watershed showing the 

location of Montague Water Conservation District facilities

(photo by Thomas Dunklin)

The Complaint implies that the "Cities of Shastina and Montague" obtain drinking water from Dwinnell Reservoir. The City of Montague uses water from Dwinnell Reservoir for drinking water from April 15th until October 15th.  Shastina is not a city but the development does have a Community Service District. Documents from the Lake Shastina Community Service District confirm that 100% of the drinking water it delivers comes from wells. Most of the water diverted by the MWCD is used for irrigation.

In 2012 the KarukTribe commissioned the report "Effects of Dwinnell Dam on Shasta River Salmon and Considerations for Prioritizing Recovery Actions." by Larry Lestelle of Biostream Environmental. Below are quotes from that report on historic Shasta River Salmon species and run sizes and on the prominence of Shasta River Salmon as a component of Lower Klamath River salmon runs:

           Jeffres et al. (2010), in a report prepared through the Center for Watershed Sciences at UC Davis, gave this perspective on the river’s historic productivity: “... the Shasta River historically produced roughly half of the Chinook salmon in the Lower Klamath River watershed while contributing less than one percent of the mean annual flow measured at the mouth of the Klamath River at Orleans (Wales 1951, NRC 2004). This prodigious historical production of salmon was largely related to the unique hydrologic and geologic setting of the Shasta River.

           The Shasta River produced three runs of salmon historically: spring Chinook, fall Chinook, and coho (Snyder 1931; NRC 2004). Peter Moyle at UC Davis believes that spring Chinook were likely the largest run in the subbasin. He has concluded that the Shasta River supported the largest tributary run of this race of Chinook in the entire Klamath basin (Moyle 2002; Moyle et al. 2008). Wales (1951), in his report entitled “The Decline of the Shasta River King Salmon Run”, concluded that only about 8% of the entire Shasta Chinook abundance consisted of fall run fish. Based on what we know today about spring and fall Chinook in general, I think it is very likely that Wales’ estimate of 8% for fall Chinook was much too low. Regardless, the general views of Moyle and Wales are consistent. Both concluded that spring Chinook was the more abundant of the two races. In the 1930s, by which time spring Chinook had been extirpated in the Shasta River, the abundance of fall run spawners in this river averaged about 39,000 fish.

Dwinnell Dam was completed in 1928. Within a decade the largest salmon run in the Shasta River Basin - Spring Chinook Salmon - were fully extirpated. The vast majority of Spring Chinook habitat in the Shasta is located above Dwinnell Dam and above the Parks Creek diversion which feeds Dwinnell Reservoir. It is, therefore, not surprising that within ten years of Dwinnell Dam's construction the robust Shasta River run of Spring Chinook Salmon was virtually wiped out.

The impact of Dwinnell is not limited to its primary roll in extirpating what was likely the largest run of Klamath River Spring Chinook Salmon. By reducing flows in Parks Creek and, especially, by degrading Shasta River water quality, Dwinnell Dam and associated developments continue to have a profound negative impact on ESA-listed Coho and fall-run Klamath River Chinook.

Dwinnell Reservoir produces toxic blue-green algae and 

degrades water quality in the Shasta River 

Here is how the Lestelle Report summarizes the ongoing impacts of Dwinnell on Coho Salmon:

           The effects of the changes in the watershed associated with the Dwinnell Dam and its operations on coho have been pronounced over the past 80 years. While some effects—major ones—were immediate due to blockage of the upper system to coho access, others related to changes in habitats downstream of Dwinnell Dam and the Parks Creek diversion have caused a long-term deterioration in habitats in these areas. These effects have been most significant on the quality of habitats that support coho spawning and egg incubation success and subsequent juvenile rearing and seasonal redistributions. The result of these changes has been to contract—or squeeze—the

distribution where coho can survive to a very limited geographic range of habitats. Other land and water uses in these geographic areas, as well as in other areas of the subbasin, have acted in conjunction with the effects associated with Dwinnell Dam. All of these factors operating in concert have brought the coho population to the brink of extinction in the subbasin.

The Shasta River at Montague Road: Dwinnell Dam and associated 

operations degrade water quality all the way to the River's mouth

(photo courtesy of Klamath Riverkeeper) 

Fewer than 100 Coho Salmon returned to the Shasta River in most recent years; in 2009-2010 only nine adult spawners returned. Shasta River Coho are on the brink of extirpation; Dwinnell creates ongoing risks for this species and is a major impediment to their recovery.

The Lestelle Report also summarizes Dwinnell's impacts on all Shasta River Salmon:

The building and operations of Dwinnell Dam have affected the salmon resources of the Shasta River in the following ways:

• The dam blocked access by spring Chinook to the upper reaches of the watershed—in both the mainstem river and several of its spring-fed tributaries; these areas were likely the core spawning areas of the historic spring Chinook population. This loss of access was the death knell for this population.

• The dam blocked access to approximately 36 miles of stream habitat for coho, most of which would have served as important spawning areas for this species, besides providing both summer and winter rearing habitats.1 This loss would have resulted in an abrupt and significant drop in coho production following dam construction.

• The reservoir formed by the dam has created a variety of degraded habitat conditions within this body of water, largely related to water quality issues but also associated with seasonal changes in water level. These water quality issues—including elevated water temperatures—influence conditions downstream of the dam due to water releases that occur in summer to satisfy water rights there. 

• Water diversions associated with the operations of Dwinnell Dam have greatly changed the characteristics of the flow and sediment regimes in Parks Creek and the Shasta River. These altered regimes have adversely affected salmon habitats in both of these streams in the following ways:                                                           - Reductions in peak flows in Parks Creek downstream of the water diversion and in the Shasta River between Dwinnell Dam and approximately Big Springs Creek have narrowed and simplified the stream channels, reduced the diversity and quality of instream habitats, and increased the amounts of intra-gravel fine sediments (reducing the quality of the substrate for egg incubation). These changes have adversely affected the quality, quantity, and connectivity of habitats used by coho and fall Chinook.                                                                                        - Reduction in the summer flow downstream of Dwinnell Dam have exacerbated high water temperature conditions between the dam and the river mouth due to loss in water mass being discharged by the river (see text associated with Figure 20. These changes have reduced the quality of the existing habitat to support juvenile salmon rearing in the river during the affected months. Consequently, sites of thermal refuge for juvenile coho have become increasingly smaller and more isolated, making it more difficult for juveniles to find the sites and use them successfully during periods of high water temperature.                                                - Reductions in flow during all seasons associated with the operations of Dwinnell Dam have reduced the amount of available habitat for all life stages of salmon in Parks Creek and in the Shasta River between the dam and Big Springs Creek.

Parks Creek below the MWCD diversion to Dwinnell

(copywrited photo by Michael Hentz) 

By blocking access to the best salmon habitat in the Shasta River Basin, reducing flows in the Shasta River and Parks Creek, and degrading water quality in the Shasta River below the dam and in Parks Creek, Dwinnell Dam and associated operations are the largest factor contributing to both the historic and the ongoing decline of salmon in the Shasta River Basin. Because the Shasta River was once the largest producer of Klamath River Spring and Fall Chinook, Dwinnell Dam and associated operations may be the single greatest impediment to the recovery of Klamath River Salmon.

The Road to Restoration

In 2011 The Karuk Tribe commissioned a report by restoration expert Thomas Canon titled "Removal of Dwinnell Dam and Alternatives - Draft Concepts Report."

Here is how Cannon summarized his findings:

             Passage to the upper river could be restored by installing a fish ladder on the dam, trapping and hauling fish around the reservoir, dam removal, or providing a bypass route around the reservoir. These four alternatives are evaluated in this report. All four alternatives would require substantial habitat restoration including development of water supplies and improvements to spawning and rearing habitat and fish passage both above and below the Dam to achieve all the potential benefits. There are approximately 12 miles of accessible habitats to salmon and steelhead above Dwinnell Dam in the mainstem Shasta River, plus a similar amount in tributary

creeks. There are approximately 16 miles of accessible habitat in Parks Creek. Dam removal would allow access to all of these habitats, including 4 miles in the reservoir reach, plus improve access and habitat to the six miles of Shasta River below the Dam. Ladder and Trap-and-Haul alternatives would allow access to only 8 additional miles of the upper Shasta River. The Bypass Alternative would allow access to only about 6 miles of the upper Shasta River and all but several miles of tributaries. The Bypass Alternative would have little direct benefit to the 6 miles of the Shasta River above or below the Dam, but would lead to substantial improvement to habitat of the lower 8 miles of Parks Creek. Both the Dam Removal and Bypass alternatives would lead to substantial improvements in water supply, water quality, and sediment transport in the lower Shasta River below the Dam and Parks Creek, respectively, which gives these alternatives substantial advantage over the Ladder and Trap-and-Haul alternatives. The added benefit of the Dam Removal Alternative over the Bypass Alternative is essentially the six miles above and below the dam, as well as four miles of Carrick Creek, a spring-fed tributary in the reservoir reach. The added benefit of the Bypass Alternative over the Dam Removal Alternative is added Bypass habitat in the upper watershed plus substantial additional benefits to the lowereight miles of Parks Creek. In terms of schedule and cost, the Bypass Alternative has a substantial advantage over the Dam Removal Alternative. Both alternatives would require substantial cost of water supply development in addition to infrastructure and habitat restoration.

The subsequent Lestelle Report, also commissioned by the Karuk Tribe, reached a conclusion about how best to restore Shasta River Salmon:

           It is my view that Dwinnell Dam is the single most important impediment to being able to make a successful reintroduction of spring Chinook in the river system. Without access to the upper watershed, the range of habitats that could be available to this species—even with significant habitat restoration in lower Parks Creek and Big Springs Creek—would likely be too small and limited to support this race.

The Spring Chinook habitat above Dwinnell Dam and its diversions includes national forest land; much of that habitat is still in good condition. Removal of Dwinnell Dam is likely the single action which would do the most to restore Klamath River Spring Chinook Salmon.

Because of its negative impact on water quality and flows, removal of Dwinnell Dam may also be necessary to prevent the extirpation of Coho Salmon from the Shasta River Basin. In its 2010 "Request to the State Water Board for Recognition of Shasta River as Flow  Impaired" Klamath Riverkeeper reached a similar conclusion with respect to water quality: "the only likely solution to pollution in Dwinnell Reservoir is removal" of the dam. 

The Settlement

Lawsuit settlements are, by their very nature, compromises. Whether a particular settlement is "good" or "bad" is, therefore, a matter of judgment. In making that judgment, a prime consideration is the likelihood that the lawsuit would be successful, i.e. that one would win in court.

Evidence and expert testimony for the impact of Dwinnell Dam and its operations on Coho Salmon is strong and includes expert agency findings. The Ninth US Federal Court Circuit is among the most pro-environment courts in the US. For these reasons, it is likely the Klamath Riverkeeper/Karuk Tribe court challenge to the Dwinnell's compliance with the Endangered Species Act would have succeed if it had been pressed to a judicial conclusion.

Beyond the likelihood of success, a prime consideration is the extent to which settlement terms advance the goal for which the lawsuit was filed in the first place.

The Dwinnell Settlement will result in the following changes to aide Coho and other Shasta River Salmon:

• Agency fish managers will have between 2,250 and 3,000 acre feet of water from Dwinnell Reservoir to use for flows to benefit Shasta River fisheries. This represents between 9% and 13% of total water available from Dwinnell Reservoir in most years. In extremely wet years, 70% of additional available water will go to irrigation and 30% to flows for fish.
• Depending on the amount of water remaining in Dwinnell Reservoir on October 1st, an additional 300 acre feet of water may be passed by MWCD's ( Montague Water Conservation District's) Parks Creek diversion to aide in Coho spawning.
• By December 31, 2014 MWCD will seek permits and authorizations for a Conservation and Habitat Enhancement and Restoration Project (CHERP), including application for a Clean Water Act section 404 permit from the US Army Corp of Engineers,. This will include a request that the Corps initiate Endangered Species Act (ESA) section 7 consultation with NMFS concerning issuance the section 404 permit. Alternately, MWCD can choose to seek a Coho "take" permit directly from MNFS.

The Settlement Agreement specifies that MWCD's CHERP will include:

• Construct, operate and maintain a fish passage and fish screening facility at MWCD’s Parks Creek diversion point.
• Line nearly 8 miles of its Main Canal in order to conserve water from leakage and loss. The conserved water shall be used to benefit water quality and cold water dependent species, including SONCC coho.
• Enlarge or retrofit the Cross Channel and/or Main Canal release gates to the Cross Channel as needed, construct habitat areas in the Cross Channel area potentially including gravel or woody debris introduction and riparian plantings, and connect the Flying L pumps to the Cross Channel to allow for the distribution of cold groundwater to the Cross Channel, as appropriate, as one management strategy for improving SONCC coho habitat.
• Develop a Maintenance Plan for its facilities including the Parks Creek fish screen and diversion point, the Main Canal and its release gates, Dwinnell Dam and the Cross Channel area.
• Develop an operations and monitoring plan with NMFS and CDFW that will be proposed for the operation of its facilities and diversion points including the use of the Flying L pumps and the bypass and release of conserved water for instream benefit in Parks Creek and Shasta River and/or their tributaries.

The Settlement also contains terms that will limit the Tribe's and Klamath Riverkeeper's ability to act and advocate for restoration of Shasta River Salmon. As expressed in a Powerpoint presentation created by the Karuk Tribe's Craig Tucker, by signing the Settlement the Karuk Tribe and Klamath Riverkeeper have agreed:

• Not to advocate for fish ladders on Dwinnell Dam.
• Not to advocate that Montague Water Conservation District (MWCD), which owns and operates the dam, pay for any other kinds of fish passage.
• Not to advocate for fish passage projects that could compete with MWCD’s restoration projects (CHERP).
• Not to file litigation against MWCD demanding dam removal.

These prohibitions last for 30 years. In addition, the Karuk Tribe and Klamath Riverkeeper will not sue agencies or advocate for dam removal in any way unless fish bypass is found to be infeasible.

In their often-quoted joint press release announcing the lawsuit's settlement, spokespersons for the Karuk Tribe and Klamath Riverkeeper appear to confirm that they will not seek removal of Dwinnell Dam under any circumstance: " 'We worked hard to find a solution that would start the fisheries restoration process but keep our neighbors in agriculture whole,' said Karuk Chairman Buster Attebery." Instead the Tribe and Riverkeeper appear to be counting on getting salmon around Dwinnell via Parks Creek and a fish by-pass channel. But the Settlement also limits what the two organizations can do to secure funding for such an endeavor.

KlamBlog's Settlement Analysis

In a recent Powerpoint presentation Craig Tucker, Klamath River Coordinator for the Karuk Tribe, summarized the Settlement's impacts :

• It represents significant increase in water for fish immediately.
• Interim flows are inadequate to promote recovery of Shasta fisheries.
• Additional water for fish flows from MWCD may be obtained in the permitting process.
• Additional water users in Shasta Valley must contribute to long term solutions.
• While it significantly limits what the Karuk Tribe and Klamath Riverkeeper can do to promote recovery of Shasta River Salmon, the Settlement Agreement does not impact what other Tribes and other organizations can do to promote recovery; other organizations are free to advocate for removal of Dwinnell or for effective fish passage and a solution to Dwinnell Dam and Reservoir water quality problems.

Klamath Riverkeeper and the Karuk Tribe, the two organizations which have led the struggle to restore Shasta River Salmon, are now significantly constrained in the short-run and potentially constrained in the long run from advocating the single most effective action needed to recover Shasta River Salmon - the removal of Dwinnell Dam and Reservoir. The ability of the Tribe and Riverkeeper to advocate for and to achieve fish passage around Dwinnell Dam and Reservoir are also significantly constrained far into the future. Furthermore, by emphasizing accommodation of agricultural interests in media releases, the Tribe and Klamath Riverkeeper have created expectations for what sort of actions they will and will not take in the future.

Having given up a major chunk of their power to restore Shasta River Salmon, the Karuk Tribe and Klamath Riverkeeper now look to other tribes, other organizations and government agencies to deal with Dwinnell and its impacts. They hope the Army Core of Engineers permit process - and the accompanying "consultations with fish agencies" - will get "additional water" into the Shasta River. Judging from other similar consultations, that outcome appears unlikely. When dealing with Ag folks, agency bureaucrats rarely if ever push for flows above what tribes and activists negotiated.

The Tribe and Riverkeeper also appear to be counting on the feasibility of a "by-pass channel" via Parks Creek that would, in effect, render Dwinnell Dan and Reservoir a large, off-stream stock pond. The "by-pass" concept, however, has yet to be subjected to rigorous feasibility study. Given Settlement terms, it is also unlikely a by-pass project could obtain funding.

The Dwinnell Settlement Agreement splits Upper Shasta and Upper Parks Creek water among agricultural, municipal and environmental purposes. Depending on how much total water is available each year, the Agreement allocates 80% to 90% of that water for agricultural and municipal diversions while roughly 10% to 20% will be allowed to remain in-stream. There is no science to back up the idea that one can adequately mitigate a dam's impact with 10% to 20% of a rivers natural flow.

Spokespersons for the Karuk Tribe and Klamath Riverkeeper would be sure to point out that the flows they negotiated, while inadequate, are "interim". But while some think "interim" implies "minimum" others likely think it implies "maximum." For the large ranch operators who control the Montague Water Conservation District those "interim" measures - along with the large payments they are making to plaintiff attorneys, the "paperwork" and permit fees to which they've committed - are likely seen as all they are going to have to do on behalf of salmon and clean water.

Meanwhile, Dwinnell Dam and Dwinnell Reservoir remain in place, creating foul water and rendering much of the Shasta River Watershed either unsuitable for or unavailable to Shasta River Salmon.