February 21, 2024 — A portion of a dam on the Puyallup River in Washington, operated by the utility company Electron Hydro, must be removed because it harms fish protected by the Endangered Species Act, a federal judge ruled Friday morning.
In December 2020, Electron Hydro attempted to replace a central portion of the dam, which lies on the Puyallup River near Tacoma. A temporary bypass channel was lined with field turf, rubber and other materials. Then it ruptured, spilling its contents into the river.
Once authorities were notified of the spill, Electron Hydro was ordered to clean up the river before continuing any construction on the dam. Where the temporary bypass channel once stood, Electron erected a temporary rock dam which remains in place to this day.
The Puyallup Tribe, a federally recognized tribe in western Washington, sued Electron Hydro in 2020, claiming that the company polluted the river with toxic materials when the the temporary bypass ruptured.
The tribe also claimed the rock dam impeded the upstream travel and spawning of endangered Chinook salmon, bull trout and steelhead trout. This amounts to an illegal taking of the fish, the tribe says, because Electron Hydro does not possess permits to take any of the fish.
In an 11-page opinion, Senior U.S. District Judge John Coughenour found the tribe presented extensive evidence that the rock dam impedes safe passage for the fish. (Electron Hydro had not argued otherwise.) Since the case is an Endangered Species Act case, he wrote, the tribe needs only to prove that irreparable injury has occurred.
A Reagan appointee, Coughenour pointed to evidence presented by the tribe of “attraction flows” — that is, accelerated water which attracts migrating fish to the rock structure and away from the fish ladder that would allow them to continue upstream.