Groups sue PG&E as Potter Valley Project license expires
A coalition of environmentalists and fishermen says the fish passage facility at Cape Horn Dam is killing fish.
April 19, 2022 — The license for the Potter Valley Project expired on Thursday, April 14. By Friday, a coalition of environmentalists and fishermen had filed a 60-day notice of intent to sue PG&E, the project owner, under the Endangered Species Act. The main complaint is that the fish passage facility at Cape Horn Dam in Potter Valley causes unauthorized harm to endangered fish, by preventing their passage when the facility is clogged, or making them vulnerable to predators as they try to climb the ladder.
The Federal Energy Regulatory Commission, which has authority over the project because its stated purpose is generating hydropower, has not yet declared if it will order PG&E to surrender and decommission the project, or if it will allow the utility to continue operating it on a year-to-year basis, as the company has said it plans to do while it recoups the cost of an expensive piece of replacement equipment.
Redgie Collins, the Legal and Policy Director for CalTrout, one of the groups intending to sue PG&E, says that, with the expiration of the license, “PG&E no longer has take coverage for listed species, meaning that they can no longer harm, harass, directly kill or injure salmon (or) steelhead at their project site. The current fish passage operation is functionally broken and leads to take. It’s time for PG&E to realize that this project does in fact take fish.”
Last month, the National Marine Fisheries Service (NMFS) wrote a letter to FERC, saying that the Project is causing take of fish on the endangered species list, in a manner not anticipated in that agency’s 2002 biological opinion. The biological opinion allowed the project to operate if it met certain conditions. Collins added that, “Along with the license, NMFS’ biological protections also expire with that license, meaning that PG&E is now vulnerable to litigation we are bringing.”
PG&E said in a statement that, “The potential claims described in the notice are without merit. PG&E is strongly committed to environmental responsibility, and we are operating the Potter Valley Project in full compliance with the National Marine Fisheries Services’ (NMFS) Biological Opinion (BiOp) and its incidental take statement, which is incorporated into the Potter Valley license. Upon expiration of a license, the Federal Power Act requires FERC to issue an annual license, which renews automatically, with the same terms and conditions for the project, until it’s relicensed, transferred or decommissioned. That means PG&E will continue to own and operate the Potter Valley Project safely under the existing license conditions until the project is transferred or FERC issues a final license surrender and decommissioning order.”
The project is currently unable to produce power because of a damaged transformer, which could take two years to rebuild.
Alicia Hamann, the Executive Director of Friends of the Eel River, which has been at the forefront of the fight to remove the dams, describes the Eel as “a river of opportunity,” with 280 miles of habitat for genetically diverse fish that haven’t made it to the ocean since 1922, when Scott Dam was built. She’s not entirely opposed to a continued diversion of water from the Eel into the Russian River. “The genetics for summer steelhead live on in rainbow trout that are trapped behind Scott Dam,” she said. “This means that there’s potential for the offspring of those trout to essentially become summer steelhead once again, if they could just reach the ocean…there’s still an opportunity for an ecologically appropriate diversion. By that, I mean one that operates without a dam and runs during the wet season, when the Eel has water supplies to spare. At this point, it’s up to Russian River water users to decide how much they want to continue the diversion, and to come together to fund and implement a plan.”
That might be easier said than done. On the day the license expired, Janet Pauli, of the Potter Valley Irrigation District, reported on the results of early surveys to the Inland Water and Power Commission. The IWPC had hired a consultant who polled Russian River water users. “It ended up being a polling base of about 23,000 people,” Paulie said. “I think they did nearly 400 polls of individuals. “The goal was to see if people had an understanding of their water supply, where it comes from, potential vulnerability with regard to the Potter Valley Project, how they felt water supply was being managed, or if they even knew. At the end of that poll, it was determined that to get a two-thirds vote for a parcel tax would be tough. Might not be successful. And would not, in all likelihood, generate the kind of funding that we believe we’re going to need moving forward in this next phase of the project license.”
It’s impossible to be unaware of water conditions in the Eel River basin, according to Adam Canter, the Director of Natural Resources for the Wiyot Tribe at the Table Mountain Bluff Reservation in Humboldt Bay. The tribe is not party to the intent to sue PG&E, but is not taking the option of a lawsuit off the table. “We’re excited that the license is expired,” Canter acknowledged; “but that doesn’t necessarily mean that we can celebrate and walk away and not have to continue to put pressure on PG&E and FERC to move forward with actual decommissioning and dam removal…it’s been really bad the last five or ten years, and I think it’s hard to ignore, just the reduction in flows, the toxic algae blooms, the reduction in the number of fish returning to the river. It’s just more visible on the Eel River basin side.”
The uncertainty over what FERC will do next is not the only mystery surrounding the Potter Valley Project, which is FERC docket number 77. One day before the license expired, Antonio Manfredini, an agent for a business called PVP 77 LLC at PO Box 777 in Roseville, filed an application for the license. They missed the 2019 deadline to file a notice of intent, and Manfredini and PVP 77 don’t show up on an international database of businesses.
No one answered the phone number listed on the application.