[env-trinity] [FOTR] Los Angeles Times,
Stockton Record and Sacramento Bee on Friant Contracts
nec at northcoast.com
Mon Aug 8 09:24:03 PDT 2005
U.S. Broke Law on Water Deals, Judge Rules
A federal jurist says environmental statutes were broken in the
renewal of irrigation pacts involving the San Joaquin River.
By Bettina Boxall
Times Staff Writer
July 30, 2005
In the latest ruling in a long-running court case, a U.S. judge has
found that the federal government violated environmental laws when it
renewed long-term contracts for a group of irrigation districts that
get water from the San Joaquin River.
The 78-page opinion, issued Thursday by U.S. District Judge Lawrence
Karlton in Sacramento, found that the U.S. Bureau of Reclamation's
2001 contract renewal was "arbitrary and capricious" and that two
federal wildlife agencies had failed to fully analyze the
environmental effects of the water deliveries.
The conservation groups that filed the suit say the irrigation
diversions have not only destroyed salmon runs on the San Joaquin,
one of the state's largest rivers, but are also harming downstream
fisheries in the Sacramento-San Joaquin Delta.
Karlton did not order a remedy for the violations, leaving that to
later proceedings in a case now 17 years old.
The same judge in 1997 struck down an earlier version of the
contracts, which govern long-term deliveries to more than two dozen
irrigation and water districts in the Friant division of the Central
Valley Project, a massive federal water project that supplies much of
In another ruling in the case last year, Karlton found that the
Bureau of Reclamation had violated fisheries protections by drying up
much of the San Joaquin to send water to farmers for the last six
decades. A trial is scheduled for next year to determine how much
water should be left in the river, which historically supported a
bountiful salmon run.
In this week's ruling, Karlton agreed with environmental groups that
the U.S. Fish and Wildlife Service and the National Marine Fisheries
Service had failed to follow Endangered Species Act requirements when
both agencies issued biological opinions that the irrigation
deliveries would not seriously harm chinook salmon, Central Valley
steelhead and other species.
"This new ruling rejects the government's attempt to ignore the true
impacts of these long-term water contracts, especially their
wide-ranging impact on downstream fisheries and endangered species,"
said Hamilton Candee, senior attorney with the Natural Resources
Defense Council, one of a number of environmental groups pressing the
Spokesmen for all three federal agencies said their attorneys were
reviewing the decision and had no comment. Greg Wilkinson, an
attorney for the Friant Water Users Assn., which represents the
irrigators, said, "There are some real oddities in the ruling." He
cited the judge's pronouncements on critical habitat and water
Karlton faulted the Fish and Wildlife Service for basing its
environmental assessment on the amount of water actually delivered to
irrigators in recent years, instead of the much larger quantities
that the contracts allow for.
But Wilkinson said those larger deliveries would only infrequently be
possible, in very wet years. "He wants it analyzed as if there's more
water in the river than the river actually holds" much of the time,
The Friant agreements were the first of more than 200 Central Valley
Project contracts that the Bureau of Reclamation is renewing in a
process that has been severely criticized by environmentalists. They
say the government is promising Central Valley agribusiness more
water than the environment can bear, charging farmers too little for
it and writing the contracts for too long a period. The 25-year pacts
contain an automatic renewal clause, meaning they will probably be in
effect for half a century.
Agencies ignored impact of water deal, judge rules
By Denny Walsh -- Bee Staff Writer
Published 2:15 am PDT Saturday, July 30, 2005
Story appeared on <http://sfmail.nrdc.org/content/print_edition/#MAIN
NEWS>Page A1 of The Bee
The U.S. Bureau of Reclamation violated the Endangered Species Act in
pushing through tens of millions of dollars in water delivery
contracts for Central Valley farmers in 2001 while paying scant
attention to the impact on protected species and their habitats, a
federal judge in Sacramento has ruled.
U.S. District Judge Lawrence K. Karlton found that biological
opinions by two federal agencies - the Fish and Wildlife Service and
the National Marine Fisheries Service - written to support the
contracts are fatally flawed.
"This ruling documents the government's utter failure to consider
the wide-ranging impacts of Friant diversions on downstream fisheries
and the San Francisco Bay Delta," said Kate Poole, an attorney with
the National Resources Defense Council, a plaintiff in the
"It is time for the government to take the blinders off and
acknowledge the effects of Friant Dam on the downstream environment
and our state's imperiled fisheries," Poole said.
The ruling is the second time in less than a year that Karlton has
found the Bureau of Reclamation has botched its operation of the
Friant Dam and its sale of water captured by the dam and diverted
from the San Joaquin River to Valley farmers.
As part of the same suit, Karlton determined last August that the
bureau's operation of the dam had dried up miles of the river,
destroying fish populations.
The two orders, and another upcoming on different questions of
liability, set the stage for a Feb. 14 trial on what can be done to
repair the damage done to the river, species and their habitat.
Spokesmen for the three government agencies said the Karlton order
filed Thursday is still under review and there will be no comment at
Gregory Wilkinson, an attorney for the irrigation districts that buy
water from the Bureau of Reclamation, said, "I'm quite disappointed.
But we'll continue to prepare for trial on the remedies phase of the
The bureau is paid approximately $117.7 million a year to deliver
diverted waters of the San Joaquin River to 28 irrigation districts,
primarily for Central Valley agriculture along the Friant-Kern Canal
that serves thousands of farmers in Fresno, Tulare, Kern and Madera
In Thursday's 78-page order Karlton wrote: "While numerous examples
may be found, perhaps the clearest instance of arbitrary conduct was
when the bureau, knowing the Fish and Wildlife Service based its
(biological) analysis on less than the full contract amount (of
water), nevertheless, adopted a 'no jeopardy' finding," meaning the
water sale would not put any endangered or threatened species at risk.
Even though the new contracts called for deliveries of 2.14 million
acre-feet a year for 25 years, Fish and Wildlife used much lower
delivery figures from 1988 through 1997 to calculate impact,
explaining in its biological opinion that "delivery of full contract
quantities is unrealistic."
"Simply put, FWS did not evaluate the effects of the entire
authorized agency action," Karlton pointed out. The Endangered
Species Act "mandates that biological opinions must be coextensive
with the action authorized."
The judge also cited an e-mail from a Fish and Wildlife senior
biologist to a colleague on Jan. 19, 2001, the same day the agency's
biological opinion was issued.
The message discussed " 'possible holes and weaknesses in our crash
(biological opinion),' including inadequate time to do a
consultation, inadequate biological assessments, a track record of
lack of compliance by the Bureau of Reclamation, concern that the
contracts are inconsistent with the Central Valley Project
Improvement Act, and lack of coordination with the National Marine
The day before the message was written, Fish and Wildlife biologists
met with their field supervisor as the new contracts were about to be
executed. A biologist asked if they could even consider the issue of
jeopardy, as required by the Endangered Species Act.
The field supervisor, Wayne White, said it was "too late" to consider
jeopardy, according to Karlton's order. "The opinion had to be rushed
out the following day, Mr. White explained, to avoid the opinion
becoming even weaker under the incoming Bush administration," the
"Because the bureau failed to carry out its duty to ensure against
jeopardy (to protected species) and adverse modification (of
habitats), and because the bureau knew of the deficiency, the court
must conclude that its conduct was arbitrary and capricious," Karlton
The judge's order states that the National Marine Fisheries Service's
biological opinion has no meaningful discussion of impact on critical
habitat for winter-run chinook salmon.
As to the California condor, the Fish and Wildlife opinion "appears
to contain no discussion whatever of the effect of the contract
renewal on 'critical habitat,' much less mention of recovery or
conservation," the judge wrote.
For the Delta smelt, the Fish and Wildlife opinion "is simply
inadequate by any measure," Karlton wrote. The same is true, he said,
for five other species.
The 14 plaintiffs claim consultations on steelhead and spring-run
chinook salmon had not been completed before the biological opinion
said the species would not be at risk.
The record supports that contention, Karlton wrote.
The Bee's Denny Walsh can be reached at (916) 321-1189 or
<mailto:dwalsh at sacbee.com>dwalsh at sacbee.com.
Sacramento Bee/Nathaniel Levine
Agencies lose S.J. River ruling
Judge: Water-sale contracts in 2001 violated the law
<mailto:dnicholsj at recordnet.com>DANA NICHOLS
Record Staff Writer
Published Saturday, Jul 30, 2005
A federal judge ruled this week that three federal agencies violated
the federal Endangered Species Act when they ignored the fact that
long-term sales of San Joaquin River water would likely harm salmon,
Delta smelt and several other threatened or endangered species.
Judge Lawrence Karlton of the U.S. District Court in Sacramento said
in his ruling issued Wednesday that the U.S. Bureau of Reclamation
broke the law in 2001 when it signed 25-year contracts to sell up to
2.1 million acre-feet per year of water from behind Friant Dam near
Karlton did not say what the bureau, the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service should do to fix
Karlton's latest ruling is the second major legal blow to the Bureau
of Reclamation's operation of Friant Dam.
In August, Karlton ruled that dam operators violated California law
by diverting so much water to farms and cities that 60 miles of the
river below Mendota is completely dry most of the time.
A remedy trial due to start in February will determine how much water
must be restored to the river to allow the salmon and steelhead
fisheries to recover.
Restoring water to the San Joaquin would also benefit Delta farmers
and Stockton ratepayers. Farmers would have an easier time
irrigating, because renewed flows would dilute salt pollution.
Stockton would be able to get more water from the New Melones
Reservoir on the Stanislaus River, much of which is now used to
dilute the salty San Joaquin.
Karlton in coming months is expected to also consider whether dam
operators have violated a second federal law, the National
Environmental Policy Act, which requires agencies to consider the
environmental effects of the things they do.
Representatives of all three agencies said Friday that they had only
just received the ruling and did not have any comment on it.
Jim Thompson is an attorney for the Friant Water Users Authority, a
group that represents farms and agencies that buy water from Friant.
"We're not surprised," Thompson said of the ruling. "Of course, we
are not pleased. We do think there are some problems with the
Thompson said he particularly disagreed with Karlton's findings
because while the judge ruled based on a theoretical sale of 2.1
million acre-feet, actual sales are typically far below that.
Thompson said Karlton should have ruled based on average sales.
Karlton said the law is clear that officials can't sign a deal for
2.1 million acre-feet but do their analysis on a smaller quantity.
"There is no question that ESA requires that all impacts of agency
action -- both present and future effects -- be addressed in the
consultation's jeopardy analysis," Karlton wrote.
Karlton's 78-page ruling repeatedly described the agencies' disregard
for the various fish and other species as "arbitrary and capricious."
The ruling quotes from internal memos that describe how officials
rushed in early 2001 to complete the biological reports needed to
justify the water sales.
For example, on Jan. 19, 2001, Fish and Wildlife Service senior
biologist David Wright e-mailed another employee about "possible
holes and weaknesses in our crash" biological opinion. Several
higher-level supervisors also received that warning.
Wright told his colleague later that day to "slam out the conclusion section."
The Fish and Wildlife Service completed its opinion that same day --
only two days after it had received basic information from the Bureau
of Reclamation needed to evaluate what the water sales would do to
A coalition of 14 groups, including the Natural Resource Defense
Council, filed the suit to restore water to the San Joaquin River.
Zeke Grader, executive director of the Pacific Coast Federation of
Fishermen's Associations, another party to the suit, said Karlton's
ruling sheds light on the frequent failure of federal wildlife
agencies to protect wildlife.
"They are just like some spoiled children that refuse to follow the
rules," Grader said.
Contact reporter Dana Nichols at 209 546-8295 or dnichols at recordnet.com
Chair, Friends of Trinity River
Consultant, California Trout, Inc.
PO Box 2327
Mill Valley, CA 94942-2327
415 383 4810 ph
415 383 9562 fx
<mailto:bwl3 at comcast.net>bwl3 at comcast.net
<mailto:bleydecker at stanfordalumni.org>bleydecker at stanfordalumni.org (secondary)
FOTR mailing list
FOTR at mailman.dcn.org
Tim McKay, executive director
Northcoast Environmental Center
575 H Street
Arcata CA 95521
(707) 822-6918 FAX 822-0827
tim at yournec.org
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