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News / Northwest

Judge orders breach of dam at hydroelectric project on Puyallup River

By Isabella Breda, The Seattle Times
Published: February 18, 2024, 4:57pm

PUYALLUP TRIBAL LANDS — A federal judge ordered Electron Hydro to breach its dam on the Puyallup River because it violates the Endangered Species Act.

In summer 2020, the company used artificial turf during construction at the dam. The river tore through the turf and washed toxic bits of ground-up tires downstream, leading to criminal charges and millions of dollars in fines and settlements.

Shortly after the spill, and because it could not complete its original plans, the company installed a rock-and-sheet-pile section of the dam, and it has remained in place since.

The Puyallup Tribe sued the company over that newer portion of the dam, arguing that it harmed fish protected under federal law. The river is home to protected Chinook salmon, steelhead and bull trout.

After visiting Electron Hydro’s facilities on the river Thursday, Judge John Coughenour issued a written order Friday for the company to apply for permits to begin removing the bulk of the dam before adult salmon return to spawn, with work to not extend beyond Sept. 15.

“We look forward to putting forth a plan that responds to the Tribe’s concerns, helps aquatic life, and produces renewable energy, for the benefit of all our future,” Thom Fischer, Electron Hydro’s owner and chief operating officer, said in a text message Friday.

The rock portion of the dam, Eric Marks, a biologist with the tribe’s fisheries department, said in court documents, likely attracts fish away from a fish ladder, and its jagged edges could potentially injure both juvenils and adult fish returning to spawn that attempt to jump and move past it. Tweaks were made to the dam portion in 2021 to support fish passage.

In 2023, for the first time since monitoring began, the Puyallup Tribe Fisheries Department found no steelhead redds, or egg nests, in the river or its tributaries above the dam, said Lisa Anderson, the tribe’s environmental attorney.

“It’s grim,” Puyallup Fisheries Director Russ Ladley said earlier this month. “Our big concern is steelhead, which is the most depressed of all the Puyallup salmonids right now. They are going to be making their way this month, and they’re going to be trying to spawn in April and in May, and unfortunately, they may not be able to get upstream to do so.”

In October of last year, the toxic rubber bits were still visible in the river, Marks wrote in a court filing.

The crumb rubber used in artificial turf is made from old tires that contain the chemical 6PPD, intended to protect tires from weathering. When 6PPD reacts with ozone, it forms 6PPD-q, which is toxic to salmon, trout and many other fish and aquatic species. Studies have shown the chemical is lethal to coho salmon.

The company hasn’t produced hydropower at its facilities since the turf spill. It has faced more than $1.5 million in Clean Water Act violation fines from the state Department of Ecology and U.S. Environmental Protection Agency.

Last year, a judge approved a $1 million settlement in a criminal lawsuit brought by the state Attorney General’s Office. As part of the settlement, Fischer, the COO, pleaded guilty to a gross criminal misdemeanor and received a suspended jail sentence. The $1 million settlement included $745,000 in restitution to the Puyallup Tribal Fisheries and $255,000 in fines paid to Pierce County, according to the Attorney General’s Office.

“We’re trying to figure out with all these lands that were stolen and taken from us, how to clean them up,” Puyallup Vice Chairwoman Sylvia Miller said Friday in tribal council chambers after the order was filed. “They’re changing Mother Nature’s way. We’ve been telling them for years and years that this is not OK.”

Decades at odds

In a small office near Orting, Pierce County, on Thursday afternoon, Fischer used his finger to trace miles of the Puyallup River on an aerial image.

“It’s a piece of our history,” he said of the 120-year-old wood diversion dam at river mile 41, and the 10-mile flume carrying the river’s water to a powerhouse. Settlers cleared acres of these rich forests, building roads and hauling materials by horse to build the hydroelectric project. It was an engineering feat at the time.

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Constructed in 1904, the project operated on the Puyallup River for nearly a century with no fish passage, blocking access to 26 miles of habitat, including some of the most pristine within Mount Rainier National Park, according to the Puyallup Tribe.

In 2000, after advocacy by the tribe, Puget Sound Energy, the project’s owner at the time, agreed to build a fish ladder. While the ladder allowed some fish passage, it was constructed opposite the primary flow of the river, the tribe argued in court filings.

Fish screens have not yet been added to prevent salmon from going down the dam’s intake and being killed. In 2008, the state Department of Fish and Wildlife issued a report to the Legislature finding that thousands of juvenile fish were likely being killed.

Fischer is one of the owners and managers of the Puyallup dam and other hydroelectric projects around the West. Electron Hydro bought the project in 2014 from Puget Sound Energy with hopes of continuing to provide hydropower to the region.

The project begins about 6 miles west of Mount Rainier National Park. The dam does not impound the river; instead, water is diverted along the wooden flume topped with a railroad track to a reservoir before plunging 875 feet downhill through steel penstocks to the powerhouse, where it generates enough energy to power more than 20,000 homes.

“This is exactly what [Gov. Jay] Inslee is telling us to do,” Fischer said Thursday. “Electric cars, more renewable energy, and get off of thermal, get off of coal and gas — you just spoke Electron.”

In 2017, Electron applied to renovate its project, with plans to remove a section of the existing wooden dam and replace it with a 70-foot-wide, 12-foot-tall inflatable rubber bladder with the goal of allowing for natural releases and transport of sand, gravel, rocks or other debris downstream.

According to a report prepared by consultants for Electron, the company in late July 2020 placed 2,409 square yards of artificial turf on a bypass channel, to create a dry area to work on the dam, between July 20 and 27. The turf was intended to function as a base layer for a plastic liner for the bypass.

The night of July 29, the diverted river — well known for its rock-chucking high flows — ripped pieces of the liner and turf loose, sending hunks of turf and a torrent of loose black crumb rubber downriver.

Also that day, Tara Livingood-Schott, a biologist for the state Department of Fish and Wildlife, documented fish killed while the company drained its reservoir. The number of Endangered Species Act-listed fish — including fall Chinook, winter steelhead and bull trout, along with coho, rainbow trout, cutthroat trout and sculpin in all life stages — that were killed was estimated to be in the thousands.

According to Marks, the biologist with the Puyallup Tribe’s fisheries department, Electron Hydro failed to incorporate any of the recommendations the tribe provided, at the company’s request, as to how to protect fish during the work.

The company was served stop-work orders from Pierce County and the Army Corps of Engineers after the crumb rubber release. Pierce County later granted an emergency authorization to build the temporary dam in place of the portion of the wooden dam that was removed during construction.

The temporary dam, made of a 70-foot wall of sheet pile and large rocks connected to a concrete abutment and attached to the main wood spillway, was completed in fall 2020, according to court documents.

“The tribes are left repeatedly to help protect, clean up and enhance the environment in its entirety,” said Puyallup Tribal Councilmember James Rideout, reacting to the ruling in council chambers Friday. “That’s what we were put here to do as Indian people: Protect our salmon, our waters, our air, all of our environment.”

The order does not preclude Electron from moving forward with its original plan to replace a portion of the wooden dam with an inflatable bladder.

The Puyallup Tribe, in court documents, has argued the bladder dam proposal would be an equally harmful alternative. The tribe plans to continue monitoring the company’s permits.

“We’ll keep fighting for this, no matter where or what, to keep our salmon people alive,” Puyallup Chairman Bill Sterud said outside federal court chambers last week.