According to a decision by the 9th U.S. Circuit Court of Appeals, part of the Electron Dam on the Puyallup River must be removed.

The federal appeals court upheld the decision of the U.S. District Court for the Western District of Washington that a vertical metal wall section of the dam – a temporary spillway – made the dam a complete obstruction to fish migration and must be removed.

According to the decision, this wall also draws fish away from the fish ladder. These include three fish that are considered threatened under the Endangered Species Act: Chinook salmon, steelhead trout and bull trout.

Work has already begun to remove the affected part of the dam. The work is expected to be completed in time for the salmon spawning season. This week, the steel plates and the pile of rocks that were the biggest obstacle were removed from the dam, according to Lisa Anderson, an environmental lawyer for the Puyallup Indian Tribe. The federal district judge had given Electron Hydro a deadline of September 15 to remove this part.

“They are well on their way to completing the canal, which will then be open to the fish in that half of the river,” Anderson said.

The demolition will leave part of the river free-flowing for the first time since the dam was built in 1904. The habitat upstream of the river will be open and accessible to fish.

“This is a big deal,” said Janette Brimmer, a senior attorney with Earthjustice who represented the Puyallup Tribe in the case. “As anyone who has ever been to the Northwest knows, dam removal is not a small undertaking, legally or technically.”

The district court found that the temporary structure significantly interfered with the fish’s migration and spawning. This is considered significant habitat alteration that affects the fish’s essential behavioral patterns, meaning the action qualifies as a “take” under the Endangered Species Act.

Thom Fischer, President of Tollhouse Energy Company, which operates Electron Hydro, wrote in an email: “Electron appealed the district court ruling because there were much easier ways to ensure fish migration until the permanent spillway project is completed.”

The fish ladder that was constructed is not only difficult for fish to find given the current flow of the river, but is also temporarily cut off from the river, the appeal court’s decision states.

“This is so important to the tribe, this is their river, right? It’s named after the tribe and it’s the only dam on the Puyallup,” Brimmer said. “That would mean the Puyallup River can flow freely from Mount Rainier to Puget Sound, and that’s great.”

The dam is 120 years old. A fish ladder was installed in 2000. In 2020, Electron Hydro built the dam and used artificial turf. When the water washed away the plastic that held the turf and washed it downstream, the company found that violate the Clean Water Act.

The temporary overflow was built after the peat disaster.

The dam has not generated any electricity since July 2020, according to Chris Spens, theDirector of Regulatory and Environmental Affairs, Tollhouse Energy Company.

Since the dam has been closed, the tribe has reported some of its highest spring steelhead trout numbers, according to Anderson.

TThe temporary spillway would remain in operation until a permanent spillway structure with air bladders was constructed that would automatically raise and lower the water level in the reservoir, Spens said.

Implementing this permanent project is a multi-pronged effort that also includes a habitat protection plan. Spens said the company has submitted a draft for review.

As part of the settlement in the Clean Water Act violation case, Electron Hydro was required to test the rubber used in its dam proposal. Tests found that the rubber contained 6PPD. The preservative 6PPD is commonly found in tires and is used to prevent them from decomposing. When the preservative is exposed to air, it reacts with ozone to create 6PPDQ, which is harmful to fish and can contaminate water, according to the Washington State Department of Ecology.

This is a concern for the tribe in the future, Anderson said.

Beyond the findings of the 6PPD report, Anderson said the tribe has other concerns about the dam proposal, including the 12-foot elevation change that juvenile salmon would have to overcome and the fact that the amount of water diverted could raise water temperatures to concerning levels.

“We will continue to examine these facts both in the permitting process and, if necessary, in court. We are prepared to do so,” Anderson said.