June 01, 2019

Salmon Repatriation: One Tribe’s Battle to Maintain Its Culture and Spiritual Connection to Place

Darcie L. Houck

The Winnemem Wintu Tribe (Winnemem or Tribe) has a historic and ongoing connection with the McCloud River watershed. The Tribe’s displacement from the McCloud River resulted from development of the Central Valley Project (CVP) in California. The CVP not only displaced the Winnemem, but also blocked salmon from returning each year to spawn in the waters above the Shasta rim dam. This article details the displacement of the Winnemem, the impact of the Shasta Dam on the salmon, and the reasonable and prudent alternative (RPA) set out in the June 4, 2009, Biological Opinion and Conference Opinion on the Long-Term Operation of the CVP (2009 BO), prepared by the National Marine Fisheries Service (NMFS), available at www.westcoast.fisheries.noaa.gov/publications/Central_Valley/Water%20Operations/
Operations,%20Criteria%20and%20Plan/nmfs_biological_and_conference_opinion_on_the_long-term_operations_of_the_cvp_and_swp.pdf.

The Winnemem are the indigenous peoples of the McCloud River watershed. Winnemem means Middle Water—the McCloud River lies between the Upper Sacramento River and the Pit River. Wintu means People; thus, the Middle Water People. The Winnemem believe that a Creator gave life and breath to all things. The Winnemem creation story tells of the Creator bringing forth the people from a sacred spring on Mount Shasta. The people were helpless, and the salmon (the Nur) took pity on the people and gave them a voice. The Winnemem in return promised to always speak for the salmon. Since the beginning, the Winnemem and the salmon have depended upon one another: the Winnemem speaking for and protecting the salmon; the salmon giving themselves for sustenance throughout the year for the people. Ceremonies, songs, dances, and prayers of the relationship between the salmon and the Winnemem are intricately woven into the very fabric of Winnemem culture and spirituality—their life way and being. Testimony of Gary Mulcahy, Governmental Liaison for the Winnemem Wintu Tribe, before the Calif. State Water Resources Control Board, Aug. 29, 2016, available at www.restorethedelta.org/wp-content/uploads/2016/08/Gary-Mulcahy-Testimony-SIGNED.pdf.

The Winnemem signed a Treaty of Peace and Friendship on August 16, 1851, at Reading’s Ranch in Cottonwood. This treaty promised the Winnemem a 25 square-mile reservation that included land along the Pit, McCloud, and Sacramento Rivers, with all other tribal lands ceded to the federal government. However, California lobbied against the treaties, resulting in President Fillmore’s refusal to ratify any of the 17 treaties signed by California tribes between 1851 and 1852. The treaties were hidden away for more than 50 years and were not acknowledged until 1905, after adoption of the Indian Appropriations Act of March 3, 1871, which ended treaty-making between Native American tribes and the federal government.

Without ratifying the treaties, California and the federal government took possession of the tribal lands, leaving the indigenous populations homeless. Despite this taking, the Winnemem continued to live along the McCloud River in their ancestral territory, caring for the salmon, and the salmon continuing to provide sustenance for the Winnemem.

Shasta Dam: People and Salmon Driven from McCloud Watershed

Planning for the redistribution of California water resources began in the second half of the nineteenth century. California’s population was growing, and water infrastructure planning was needed to support future economic development and growth. Two large California water projects were proposed formally and approved in the mid-to-late twentieth century: the CVP in 1935 and the State Water Project (SWP) with the passage of the California Water Bond in 1960. Cal Stats. 1933, Ch. 1042, Cal. Water Code, Div. 6 Pt. 30 (P.S. 409) (50 Stat. 844, 850).

The CVP is a federal project constructed and operated by the Bureau of Reclamation (BOR or Reclamation), and consists of several divisions, including Shasta, Trinity, Sacramento, American, Friant, Delta, and San Luis. See www.usbr.gov/mp/cvp. The largest facility of the CVP is the 4.5 million-acre feet Shasta Reservoir on the Sacramento River, which floods Wintu, Yana, and Yahi homelands. This facility impacts the traditional lifeways of upriver Wintu, Pit River, and other indigenous peoples who rely on the salmon that used to migrate upstream past the dam, and whose homelands were flooded by the massive reservoirs in the CVP. The CVP encompasses a 400-mile, statewide system of flood management, hydroelectric generation, and water conveyance infrastructure in the Sacramento and San Joaquin watersheds. Drawing on the waters of Wintu, Hupa, Pit River, and Karuk homelands in the north (the McCloud, Pit, Upper Sacramento, and Trinity rivers and their tributaries), the CVP conveys water all the way to San Diego County in southern California. Work began on the CVP in 1937; water began collecting in Shasta and Friant reservoirs in 1943; and the first power was generated from the project in 1944.

Congress authorized the CVP in 1935 (49 Stat. 115) and 1937 (50 Stat. 850), including the authorization to construct Shasta Dam. The 1941 CVP Indian Land Acquisition Act (Pub. L. No. 198) authorized the secretary of the Interior to designate Indian lands for use in project development, with a provision for payments to the affected tribes and individuals, which would have included the Indians of the McCloud River, the Winnemem. The legislation provided for new land, a cemetery to be placed in trust for the Tribe, and additional resources. However, the federal government ignored its obligations under the Indian Land Acquisition Act, leaving the Winnemem homeless, with no recourse when the government took their aboriginal lands.

Congress did not specifically name the Winnemem in the Indian Land Acquisition Act. Because of this omission, the Department of Interior (DOI) did not include the Winnemem on the list of federally recognized tribes. The DOI published criteria in 1978 for the “acknowledgement” of the status of tribes not otherwise recognized. The federal acknowledgment criteria, as revised, is set forth in 25 C.F.R. Part 83. In 1994 Congress passed the “List Act” requiring the secretary of the Interior to publish annually in the Federal Register a list of all federally recognized tribes eligible for federal services. 25 U.S.C. § 479-1. Inclusion on the list constitutes proof of federal recognition. Tribes not on the list can petition for federal recognition pursuant to 25 C.F.R. Part 83, a process known to be difficult and take many years, if not decades. If the acknowledgment petition is granted, the tribe will be listed in the Federal Register as a federally recognized tribe.

The Winnemem people who were forced to leave the McCloud watershed when the Shasta Dam was raised never received any of the land, benefits, or services promised through the adoption of the Indian Land Acquisition Act. An Indian cemetery was created as set forth in the Indian Land Acquisition Act and placed in trust. The Winnemem ancestors were moved to this new cemetery from the lands to be flooded by the Shasta Dam raise. However, the Tribe has no rights to this cemetery because the Winnemem are not included in the list of tribes published in the Federal Register by the secretary of DOI. The Winnemem nonetheless continue to assert their rights to federal recognition as an Indian tribe, as well as their rights to protect and maintain the McCloud watershed, practice their religion, and return the salmon above the Shasta rim dam.

Maintaining Access to Cultural and Spiritual Sites within McCloud Watershed

The Winnemem ancestral territory includes the east side of the Upper Sacramento River watershed; the entire McCloud River watershed; Squaw Creek; and approximately 20 miles of the Pit River from confluence of the McCloud River, Squaw Creek, and Pit River up to Big Bend. This territory covers the Upper Sacramento River watershed and the McCloud River watershed, spanning three rivers and numerous tributaries. Any water diversions, large or small, can have adverse effects on the Tribe’s cultural resources, sacred sites, village sites, burial grounds, and subsistence gathering.

BOR is the lead agency for the Shasta Dam Raise project. The U.S. Forest Service (USFS), Bureau of Indian Affairs (BIA), Colusa Indian Community Council of the Cachil Dehe Band of Wintun Indians, and the U.S. Army Corps of Engineers (Corps) all have roles in the project. The Water Infrastructure Improvements for the Nation Act (WIIN Act) of 2016 signed by President Obama authorized BOR to spend $20 million on design and preconstruction of the dam raise. The WIIN Act allows the federal government to recover up to 50 percent of the cost of the project and requires that nonfederal partners cost share the remaining 50 percent. These nonfederal partners include water agencies in the Central Valley, such as Westlands Water District (WWD). WWD has recently issued a notice of intent (NOI) to prepare a California Environmental Quality Act (CEQA) document as the CEQA lead agency for the Shasta Dam raise. WWD has also offered to provide real property and partial funding toward the project. See wwd.ca.gov/news-and-reports/environmental-docs/; see also www.usbr.gov/mp/ncao/shasta-enlargement.html.

The project is located roughly nine miles northwest of Redding on the Sacramento River in Shasta County in Northern California. The dam is a 602-foot-high concrete gravity dam. The dam provides flood control, power, and water supply benefits, and the reservoir is used for recreation. The Sacramento, Pit, and McCloud rivers feed into the Shasta Reservoir.

The proposed 18.5-foot dam raise would inundate an additional 2,500 acres (including the majority, if not all, of the Winnemem remaining sites of cultural significance). BOR would need to acquire roughly 200 parcels of nonfederal land (primarily in the community of Lakehead).

BOR issued a final environmental impact statement (EIS) pursuant to the National Environmental Policy Act (NEPA) in July 2015 for the Shasta Lake Water Resources Investigation (SLWRI) (or the Shasta Dam raise), available at www.usbr.gov/mp/nepa/nepa_project_details.php?Project_ID=1915. The EIS states that the purpose of the SLWRI Feasibility Report is to document the lead agency and the cooperating agencies’ “evaluation of the potential enlargement of Shasta Dam and Reservoir,” the purpose of which is “to (1) improve anadromous fish survival in the upper Sacramento River, (2) increase water supply reliability in the Central Valley of California, and (3) address related water resource problems, needs, and opportunities.” Executive Summary ES-1 Final, July 2015.

The environmental document finds that numerous cultural resources necessary for the Winnemem to continue traditional cultural and religious practices will be significantly affected by all action alternatives. BOR invited federally recognized tribes and non-federally recognized Native American groups to be consulting parties pursuant to the National Historic Preservation Act (NHPA) section 106 process. The Winnemem raised concerns about impacts that resulted from the initial construction of Shasta Dam and potential impacts of enlarging the dam on traditional, religious, and culturally significant sites. The Winnemem are participating in the project review as a consulting party, through the section 106 process. See Shasta Lake Water Resources Investigation Feasibility Report at ES-45 Final, July 2015, available at www.usbr.gov/mp/ncao/slwri/docs/feasability/slwri-final-fr-full.pdf.

On October 19, 2018, President Donald Trump issued a presidential memorandum titled Promoting the Reliable Supply and Delivery of Water in the West, www.whitehouse.gov/presidential-actions/presidential-memorandum-promoting-reliable-supply-delivery-water-west. This memorandum ordered federal agencies to find ways to remove regulatory burdens on federal water projects in the western United States. Although it is unclear how this memorandum will impact California water projects, it appears to target three main projects in the state: (1) the Shasta Dam raise, (2) construction of Sites reservoir, and (3) the construction of Temperance Flat Reservoir. The Shasta Dam raise is the closest of the three to becoming reality. The presidential memorandum does not specifically dictate what streamlining actions federal agencies would take to expediate such water projects. However, the memorandum sends a clear message to federal agencies that the president expects to see these water projects move forward. This includes identifying and removing burdensome regulations that could delay or prevent approval of a project.

Currently the project is in the preconstruction and design phase. BOR is in the process of completing the environmental review process—a Record of Decision (ROD) has not yet been issued. Congress appropriated $20 million for Shasta preconstruction activities in March 2018. These preconstruction activities include the design- and engineering-related costs to raise the more than 600-foot dam an additional 18.5 feet, adding to its storage capacity. In total, the project would cost more than $1.3 billion. The March 2018 funding is in addition to the funding authorized in the WIIN Act referenced above. The WIIN Act provided up to $600 million for new water storage, recreational facilities, federally owned facilities, construction criteria, and cost-share opportunities. Sixty-seven million dollars of the $600 million was appropriated for California. The $20 million allocated to Shasta Dam comes from the $67 million. Despite not having issued the ROD, BOR is in the process of finalizing an engineering design for the 18.5-foot dam raise, concluding real estate planning for the impacts from the 20.5-foot pool raise; coordinating with federal, state, tribal, and local agencies; conducting public involvement and stakeholder outreach; and developing cost-share partner agreements.

Reclamation anticipates awarding a land consultant contract in the spring of 2019, and to begin surveying lands this summer. BOR must secure cost-share partners (for an estimated $1.4 billion) to complete the dam and has proposed securing 50 percent of the cost share partners by August 2019. An ROD is anticipated to be issued in September 2019, and BOR plans to award the dam raise construction contract in December 2019. If BOR meets this proposed schedule, it anticipates being able to fill the reservoir by February 2024.

On November 30, 2018, WWD (assuming a lead agency role) issued a Notice of Preparation (NOP) for a Draft Environmental Impact Report (DEIR) for the Shasta Dam raise in accordance with the California Environmental Quality Act (CEQA). Opponents to the project, as well as several California state agencies, have raised concerns that WWD actions are in violation of state law, including the California Wild and Scenic Rivers Act (Pub. Res. Code § 5093.50, et seq.). On January 14, 2019, the California State Water Resources Control Board (SWRCB) sent a letter to WWD in response to its NOI to conduct an environmental review under CEQA, advising that participation by it in the process could be prohibited. See Letter from Eileen Sobeck, executive director, State Water Resources Control Board, to Jose Gutierrez, deputy general manager, Westlands Water District, C/O Stantec, Shasta Dam Raise Project (Jan. 14, 2019), available at www.friendsoftheriver.org/wp-content/uploads/2019/01/WQC_NFisch.JKSahota.-Comments-on-Shasta-Dam-Raise-Project.pdf. The letter references subdivision (c) of section 5093.542 of the Pub. Res. Code (PRC), which states:

Except for participation by the Department of Water Resources in studies involving the technical and economic feasibility of enlargement of Shasta Dam, no department or agency of the state shall assist or cooperate with, whether by loan, grant, license, or otherwise, any agency of the federal, state, or local government in the planning or construction of any dam, reservoir, diversion, or other water impoundment facility that could have an adverse effect on the free-flowing condition of the McCloud River, or on its wild trout fishery.

The letter informs WWD that section 5093.542 of the PRC “prohibits assistance or cooperation by ‘license or otherwise.’” The SWRCB and other state agencies are barred “from issuing any permit or other approval for a project that could adversely affect the free-flowing character of the McCloud River or its wild trout fishery.” The letter notes that “[n]ecessary permit approvals for the State Water Board includes approvals under sections 401 and 402 of the Clean Water Act and time extensions for U.S. Bureau of Reclamation’s . . . water right permits. . .” Construction activities to enlarge Shasta Dam cannot begin “unless and until the State Water Board approves extensions of time for Reclamation’s water rights.” The letter also notes that such extensions have been filed and noticed with numerous protests that remain active. The SWRCB would need to comply with CEQA prior to any approval of the petitions for extension of time to complete construction and use pursuant to the water rights permits.

The project also needs a National Pollutant Discharge Elimination System (NPDES) permit to commence construction activities. (Wat. Code § 13370, et seq.). If an EIR were to be prepared it would need to evaluate “flow regimes within 45 to 65 percent of unimpaired flow below Shasta Dam that is consistent with the implementation provisions described in” the Bay-Delta Plan Framework. See Letter from Eileen Sobeck, supra.

Numerous environmental groups, local residents, tribal groups, and other entities oppose the Shasta Dam Raise project. See Environmental Water Caucus Response Letter to the U.S. BOR for the Shasta Lake Water Resources Investigation DEIS (Sept. 30, 2013). Through California Secretary of Natural Resources John Laird, the state itself formally opposed the project. Secretary Laird accused the U.S. Congress of attempting “to circumvent California’s water management framework by adding riders to the appropriations bill.” He went on to express particular concern about the “efforts to preclude judicial review for the California WaterFix and other water operations” that would “prohibit the U.S. Bureau of Reclamation from fulfilling its obligations to comply with the Bay-Delta Plan,” and added that “California is committed to managing water and advancing water infrastructure projects in an environmentally sustainable, fiscally responsible and transparent way. Any proposal to exempt water projects from judicial review would violate due process and undermine public confidence.” Secretary Laird concluded that “[a]ny congressional attempt to weaken environmental priorities, undermine federal and state laws or circumvent judicial review is not in the best interest of Californians.” See Letter from John Laird, Secretary of California Natural Resources, to Chairman and Ranking Members of the U.S. Senate Committee on Appropriations (July 17, 2018), available at https://mavensnotebook.com/wp-content/uploads/2018/07/Opposition-to-Interior-Appropriations-riders-7.17.18.pdf. John Laired was the secretary of the California Resources Agency under Governor Jerry Brown through 2018. The new secretary of the California Resources Agency is Wade Crowfoot. The California Resources Agency has not changed its position regarding the Shasta Dam raise to date.

For its part, the Winnemem also assert (1) that all new water rights allocations are illegal, as the state and federal government have failed to, and continue to fail to, address the inherent water rights of indigenous peoples and (2) that the project violates the California Wild and Scenic Rivers Act (Pub. Res. Code § 5093.50, et seq.). The Winnemem contend that state and federal actions have destroyed millions of acres of indigenous cultural lands, including sacred sites, village sites, burial grounds, and gathering areas. The Shasta Dam raise will likely destroy the Winnemem’s last remaining sacred sites and traditional cultural properties within the McCloud River watershed. See Comments, Environmental Water Caucus Response Letter to U.S. Bureau of Reclamation for the Shasta Lake Water Resources Investigation DEIS, (Sept. 30, 2013); see also Speak Up Against the Shasta Dam Raise and for Winnemem Cultural Survival (Dec. 17, 2018), available at www.winnememwintu.us/2018/12/17/speak-up-against-the-shasta-dam-raise-and-for-winnemem-cultural-survival. In addition, the push to build a higher dam will prevent the salmon, the Nur, from returning home to the McCloud watershed.

Discovery of California Salmon in New Zealand

In the face of turmoil in their own homelands, the Winnemem found an unexpected source of hope through another indigenous community, the Maori aboriginal peoples of New Zealand. In 1872, the U.S. Fish Commission (now U.S. Fish and Wildlife Service) began construction of a salmon egg collection facility on the McCloud River about two miles above the confluence of the McCloud and Pit rivers. Livingston Stone, a fish culturist and deputy commissioner for the U.S. Fish Commission, developed and directed the salmon egg collection at this new facility. The facility was known as the McCloud River facility and later as the Baird fish hatchery. Livingston Stone was dispatched to California to procure Pacific salmon eggs for planting into eastern U.S. rivers because the native Atlantic salmon stocks had been depleted. U.S. Fish Commission Reports: Stone 1874–1897. The Baird hatchery sent salmon eggs all over the world, including to New Zealand, where no native salmon populations existed. The salmon now run wild in the rivers of New Zealand, whereas no salmon currently run the McCloud River.

The Winnemem have traveled to New Zealand several times to establish a partnership with the Maori people, study the salmon there, and continue to pursue options for bringing New Zealand salmon eggs to the McCloud River—to bring the salmon home. The Tribe has provided comment, consultation, data, and argument to state and federal agencies as to the need for fish passage (consistent the RPA) and repatriation of wild salmon from New Zealand back to the McCloud watershed. See https://water.ca.gov/LegacyFiles/fishpassage/docs/shasta_winnemem.pdf.

The Winnemem have continued to provide information to BOR and advocate for the return of the New Zealand salmon. Based on the Winnemem’s persistence, BOR has provided funding for the collection of samples of genetic material from New Zealand salmon and testing of the genetic samples to determine whether these salmon have the same genetic markers as the endangered salmon in California. The genetic samples have been collected and results of the testing are anticipated by fall 2019. Although BOR provided limited funding for these studies, BOR has not progressed with the provisions of the RPA. Historically, winter-run Chinook salmon spawned in the upper reaches of the Sacramento River watershed, including the McCloud, Pit, and Little Sacramento rivers. The construction of Shasta and Keswick dams led to a drastic decline in the salmon population because the salmon no longer could access these historic spawning areas. This led to the Chinook being listed as an endangered species under California law in 1989 and federal law in 1994.

In June 2004 a new CVP, Operational Criteria and Plan (OCAP), was issued by BOR in coordination with operations of the SWP. The OCAP implemented changes to the management of water throughout the CVP. The NMFS, based on the OCAP, issued a biological opinion (BO) on the effects of the long-term operations of the CVP on federally listed endangered winter-run Chinook Salmon, Spring-run Chinook Salmon, Central Valley Steelhead, threatened Southern Oregon/Northern California Coast Coho Salmon, and threatened Central California Coast Steelhead, and designated habitats in accordance with section 7 of the federal Endangered Species Act (ESA). See 16 U.S.C. § 1531, et seq.

The original draft of the NMFS 2004 BO concluded that the new OCAP would jeopardize the continued existence of many listed species, including the winter-run Chinook. However, despite the initial draft finding “jeopardy,” the formal BO on October 22, 2004 (2004 BO) determined “no jeopardy.” See § 1.4 of 2009 BO.

This change in determination to “no jeopardy” led to a critical court case: Pacific Coast Federation of Fishennen Ass’n v. Gutierrez, 1:06-cv-245-0WW-GSA (E.D. Cal. 2007), 2007 U.S. Dist. LEXIS 45846. The court ultimately invalidated the 2004 BO and required issuance of a new BO, the 2009 BO. Water agencies and agricultural interests in turn challenged the new 2009 BO, which led to San Luis & Delta-Mendota Water Authority. Locke and related cases. See Stockton East Water Dist. v. U.S. National Oceanic and Atmospheric Admin.; State Water Contractors v. Locke; Kern County Water Agency v. Gary Locke, Secretary of Commerce; and Metropolitan Water District of Southern California v. National Marine Fisheries Service. These cases were consolidated, and the Ninth Circuit Court of Appeals held that the 2009 BO was valid in its entirety. See San Luis & Delta Mendota Water Authority v. Locke, 776 3d 971 (2014); Consol. Salmonid Cases v. Locke, 791 F. Supp 2d 802 (2011).

The NMFS 2009 BO allows the CVP and SWP to continue to operate in compliance with the federal ESA. The court’s holding centers on the 2009 BO reasonable and prudent alternatives (RPAs). The 2009 BO must include any RPAs that the agency believes will avoid the consequence of a jeopardy determination. See 16 U.S.C. § 1536(b)(3)(A). The RPA provides alternative actions identified during formal consultation that can be implemented under the federal agency’s legal authority consistent with the purpose of the action, that allow continued operation of the CVP and SWP in compliance with the ESA. The 2009 BO was a jeopardy opinion and included fish passage as an action under the RPA. None of the plaintiffs challenged the provisions requiring fish passage at the time the 2009 BO was under judicial review.

The 2009 BO specifically requires BOR to investigate and consider volition fish passage alternatives. To date, BOR has not implemented any such alternatives. The RPA obligates BOR to evaluate the feasibility for the reintroduction of winter-run and spring-run Chinook salmon and steelhead upstream from the Shasta, Folsom, and New Melones dams. The Shasta Dam Fish Passage Evaluation is the first effort to be proposed and includes a Pilot Implementation Plan project that was initially projected for completion by 2014.

The Pilot Implementation Plan is an experimental effort to determine whether it is feasible to reintroduce Chinook salmon to tributaries above Shasta Lake and to transport migrating juvenile fish to the Sacramento River below Keswick Dam. The plan evaluates potential methods for capture, transport, and release of fish at different life stages. The Pilot Implementation Plan will review existing information on species and habitat that will support additional field studies to determine conditions of existing habitat for the potential long-term fish passage program.

The participating agencies identified six focus areas for the Shasta Dam Fish Passage Evaluation: (1) habitat, (2) fish passage technology, (3) fish health and genetics, (4) pilot planning, (5) policy and regulation, and (6) public outreach. The RPA states that “[c]onstruction of the protype facility(s) must be completed in time to conduct two years of biological and physical evaluations of head-of-reservoir prototype collection facilities by the end of 2016.” In October of 2017, BOR issued the Shasta Dam Fish Passage Evaluation Public Scoping Report to initiate an environmental review under NEPA. The NEPA review has not been completed to date and no fish have been placed above the Shasta rim dam. See www.usbr.gov/mp/bdo/shasta-dam-fish-pass.html.

In response to BOR’s Shasta Dam Fish Passage Evaluation proposal, the Winnemem proposed a Spiritual, Cultural and Practical Fish Restoration Plan to be implemented as the fish passage pilot project plan (while continuing to oppose the proposed Shasta Dam raise). The plan can be found at https://water.ca.gov/LegacyFiles/fishpassage/docs/shasta_winnemem.pdf. No action has been taken on the Winnemem proposal, nor have any of the RPA options been implemented. The environmental review process has not been completed and to date no salmon have been placed above the Shasta rim dam.

BOR continues to pursue implementation of the Shasta Dam raise without implementing the required RPA ordered by the court. Essentially BOR has failed to comply with its ESA responsibilities to provide fish passage consistent with the RPA. The Shasta Dam Raise project raises concerns because it appears to be in violation of California state law as set out in the SWRCB letter to WWD and Secretary Laird’s letter to the Chairman of the Senate Committee on Appropriations discussed above. BOR has represented that the goals (18.5-foot dam raise) of the Shasta Dam and Reservoir Expansion Project are as follows:

  • increase water storage capacity by 630,000 acre-feet for the environment and for water users;
  • improve water supply reliability for agricultural, municipal and industrial, and environmental uses;
  • reduce flood damage; and
  • improve Sacramento River temperatures and water quality below the dam for anadromous fish survival (increased volume of cold water would increase the ability of Shasta Dam to make cold water releases to improve water temperatures in the upper Sacramento River for anadromous fish).

Despite stating that one of the purposes of the Shasta Dam raise is to improve Sacramento River temperatures and water quality below the dam for anadromous fish survival, USFW issued a report reaching a different conclusion. See Paul Rogers, Plan to Raise Shasta Dam Takes Hit after Federal Biologists Say They Can’t Support It, Mercury News, Jan. 27, 2015, updated Aug. 12, 2016 (citing to USFW draft report completed Nov. 2015), available at https://www.mercurynews.com/2015/01/27/plan-to-raise-shasta-dam-takes-hit-after-federal-biologists-say-they-cant-support-it/. (The draft report has since been removed from the USFW website.) It is unclear whether any work on the fish passage project is continuing or when the implementation will occur, while the dam raise project appears to be moving forward as evidenced by the project schedule issued by BOR and the recent NOI issued by WWD.

The Winnemem, meanwhile, are committed to seeing salmon return to the McCloud watershed and are working with the Maori and New Zealand Fish and Game councils to conduct genetic testing on salmon found in New Zealand rivers. The Shasta Dam raise has been pending for more than two decades; however, current actions by the president, BOR, and WWD demonstrate that the project may now be moving forward. The Winnemem’s survival as a people is connected to the McCloud watershed and to the wild salmon that they believe will someday return. BOR has an obligation to comply with the court-ordered RPA and should continue to work toward finding ways to provide fish passage for endangered salmon. To date, the Winnemem have made progress in this effort through receipt of funds from BOR to conduct genetic testing of the New Zealand salmon. The Winnemem plan to continue to persist and plan to succeed in bringing their salmon home––keeping their promise to the Nur.

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Darcie L. Houck

Ms. Houck is an administrative law judge for the California Public Utilities Commission. Before taking this position, Ms. Houck was a private attorney representing tribal governments in the areas of energy, environment, and natural resources. The opinion set forth in this article is that of the author alone and not of the California Public Utilities Commission. She may be reached at darcie.houck@cpuc.ca.gov.