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<div><font face="Times New Roman" size="+3"><b>U.S.</b></font><font
size="+3"><b> Broke Law on Water Deals, Judge Rules</b></font><br>
</div>
<div><font face="Times New Roman" size="+2"><b>A federal jurist says
environmental statutes were broken in the renewal of irrigation pacts
involving the San Joaquin River.</b></font><br>
</div>
<div><font face="Times New Roman">By Bettina Boxall<br>
Times Staff Writer<br>
<br>
July 30, 2005<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Karlton did not order a remedy for the violations, leaving that to
later proceedings in a case now 17 years old.<br>
<br>
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
California agriculture.<br>
<br>
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.<br>
<br>
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.<br>
<br>
"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
case.<br>
<br>
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
quantities.<br>
<br>
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.<br>
<br>
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, he said.<br>
<br>
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.</font><br>
</div>
<div><font face="Times New Roman"> </font><br>
</div>
<div><font face="Times New Roman"> <b>
SACRAMENTO BEE:</b></font><br>
</div>
<div><font face="Times New Roman"><b> </b></font><br>
</div>
<div><font face="Times New Roman"> </font><br>
</div>
<div><font face="Times New Roman"> </font><br>
</div>
<div><font face="Times New Roman"> </font><br>
</div>
<div><font face="Times New Roman" size="+2"><b>Agencies ignored impact
of water deal, judge rules</b></font></div>
<div><br></div>
<div><font face="Verdana"><b>By Denny Walsh -- Bee Staff Writer<br>
<i>Published 2:15 am PDT Saturday, July 30, 2005<br>
Story appeared on</i></b></font> <a
href="http://sfmail.nrdc.org/content/print_edition/#MAIN NEWS"><font
face="Verdana"><i><b>Page A1</b></i></font></a><font
face="Verdana"><i><b> of The Bee</b></i></font><br>
<b></b></div>
<div><font face="Times New Roman"> </font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><img
src=
"http://ads.sacbee.com/RealMedia/ads/adstream_lx.ads/www.sacbee.com/content/news/1136205603/Button20/Sacbee/richmond_336_nw_jul_5/richmondamerican_336x280_aug2003.html/34306163363063383432656230626330?_RM_EMPTY_"width="1"height="1"><span
></span>"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 17-year-old lawsuit.<br>
</div>
<div><font face="Verdana" size="-1">"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.</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><font face="Verdana" size="-1">Spokesmen for the three government
agencies said the Karlton order filed Thursday is still under review
and there will be no comment at this time.</font><br>
</div>
<div><font face="Verdana" size="-1">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 case."</font><br>
</div>
<div><font face="Verdana" size="-1">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 counties.</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><font face="Verdana" size="-1">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."</font><br>
</div>
<div><font face="Verdana" size="-1">"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."</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><font face="Verdana" size="-1">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 Fisheries Service."</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font></div>
<div><br></div>
<div><font face="Verdana" size="-1">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 order
says.</font><br>
</div>
<div><font face="Verdana" size="-1">"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 wrote.</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><font face="Verdana" size="-1">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.</font><br>
</div>
<div><font face="Verdana" size="-1">The record supports that
contention, Karlton wrote.</font><br>
</div>
<ul>
<li><font face="Verdana" size="-1">The Bee's Denny Walsh can be
reached at (916) 321-1189 or</font> <a
href="mailto:dwalsh@sacbee.com"><font face="Verdana"
size="-1">dwalsh@sacbee.com</font></a><font face="Verdana"
size="-1">.</font>
<li>
<hr size="2"></ul>
<div><font face="Times New Roman">Sacramento</font><font size="-1">
Bee/Nathaniel Levine</font><br>
</div>
<div><font face="Times New Roman"><b>STOCKTON RECORD:</b></font><br>
</div>
<div><font face="Times New Roman"><b>Agencies lose S.J. River
ruling</b></font><b><br>
Judge: Water-sale contracts in 2001 violated the law</b><br>
</div>
<div><a href="mailto:dnicholsj@recordnet.com"><font
face="Times New Roman">DANA NICHOLS</font></a><font
face="Times New Roman"><br>
Record Staff Writer<br>
Published Saturday, Jul 30, 2005</font><br>
</div>
<div><font face="Times New Roman">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.<br>
<br>
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
Fresno.<br>
<br>
Karlton did not say what the bureau, the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service should do to fix the
error.<br>
<br>
Karlton's latest ruling is the second major legal blow to the Bureau
of Reclamation's operation of Friant Dam.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Representatives of all three agencies said Friday that they had only
just received the ruling and did not have any comment on it.<br>
<br>
Jim Thompson is an attorney for the Friant Water Users Authority, a
group that represents farms and agencies that buy water from
Friant.<br>
<br>
"We're not surprised," Thompson said of the ruling. "Of
course, we are not pleased. We do think there are some problems with
the decision."<br>
<br>
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.</font></div>
<div><font face="Times New Roman"><br>
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.<br>
<br>
"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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Wright told his colleague later that day to "slam out the
conclusion section."<br>
<br>
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
various species.<br>
<br>
A coalition of 14 groups, including the Natural Resource Defense
Council, filed the suit to restore water to the San Joaquin River.<br>
<br>
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.<br>
"They are just like some spoiled children that refuse to follow
the rules," Grader said.<br>
<br>
Contact reporter Dana Nichols at 209 546-8295 or
dnichols@recordnet.com</font><br>
</div>
<div><font face="Times New Roman"> </font><br>
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<div><font face="Times New Roman"> </font><br>
</div>
<div><font face="Times New Roman" color="#808080"><i>Byron
Leydecker,</i></font><br>
</div>
<div><font face="Times New Roman" color="#808080"><i>Chair, Friends of
Trinity River</i></font><br>
</div>
<div><font face="Times New Roman" color="#808080"><i>Consultant,
California Trout, Inc.</i></font><br>
</div>
<div><font face="Times New Roman" color="#808080"><i>PO Box
2327</i></font><br>
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<div><font face="Times New Roman" color="#808080"><i>Mill Valley, CA
94942-2327</i></font><br>
</div>
<div><font face="Times New Roman" color="#808080"><i>415 383 4810
ph</i></font><br>
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fx</i></font><br>
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<div><a href="mailto:bwl3@comcast.net"><font face="Times New Roman"
color="#0000FF"><u><i>bwl3@comcast.net</i></u></font></a><br>
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color="#0000FF"><i>bleydecker@stanfordalumni.org</i></font></a><font
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<div><x-tab> </x-tab>Tim
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<x-tab> </x-tab>Arcata CA 95521<br>
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