<html><body><div style="color:#000; background-color:#fff; font-family:times new roman, new york, times, serif;font-size:16px"><div class="" style=""><span dir="ltr" class="" style="font-weight: 700; font-family: Verdana, Arial, Tahoma; font-size: 12px;"><a href="http://www.wildcalifornia.org/blog/overview-of-the-klamath-flow-augmentation-release-decision/" class="" style="">http://www.wildcalifornia.org/blog/overview-of-the-klamath-flow-augmentation-release-decision/</a></span><br class="" style=""></div><div style="font-family: Verdana, Arial, Tahoma; font-size: 12px; text-align: center;" class=""><strong class="" style="">- Environmental Protection Information Center (EPIC) - <span dir="ltr" class="" style="">http://www.wildcalifornia.org</span> -</strong></div><div class="" style="margin: 0px auto; font-family: Verdana, Arial, Tahoma; font-size: 12px;"><div id="Outline" style="width: 1088.09375px; margin-left: auto; margin-right: auto;
padding: 10px; border: 1px solid rgb(0, 0, 0);" class=""><div id="BlogTitle" style="font-weight: bold; font-size: 16px; margin-bottom: 5px;" class="">Overview of the Klamath-Trinity Flow Augmentation Release Decision</div><div id="BlogDate" style="margin-top: 5px; margin-bottom: 10px;" class="">Posted By <u class="" style="">Lucy Allen</u> On October 8, 2014 @ 2:46 pm In <u class="" style="">Blog</u> | <u class="" style=""><a href="http://www.wildcalifornia.org/blog/overview-of-the-klamath-flow-augmentation-release-decision/print/#comments_controls" class="" style="">Comments Disabled</a></u></div><div id="BlogContent" style="padding: 10px; margin-top: 10px;" class=""><div class="" style=""><strong class="" style=""><img class="" src="http://www.wildcalifornia.org/wp-content/uploads/2014/10/Trinity-Photo-by-Casey-Roberts-300x225.jpg" alt="Trinity Photo by Casey Roberts" width="300" height="225" style="float: right; margin: 10px
0px 5px 10px;"></strong>Judge Lawrence O’Neill recently issued a decision in <em class="" style="">San Luis & Delta-Mendota Water Authority v. Jewell</em>, a case dealing with the Flow Augmentation Releases to the Klamath River since August of 2013. <a href="http://www.wildcalifornia.org/wp-content/uploads/2014/10/TrinitySJDecision10.1.14.pdf" rel="external" class="" style="">Click here to view the full decision. </a><sup class="" style="">[1]</sup></div><div class="" style="">What comes out of the decision is that the Trinity River Record of Decision, which sets limits on flows to restore fish and wildlife, is geographically limited to the mainstem Trinity River, and therefore does not limit Klamath River flows. However, the law that the Federal Government relied on to make the releases (the “1955 Act”) is also geographically specific to the mainstem Trinity River and thus does not provide authority for these releases. The
court dodged the tribal trust obligation arguments, so no precedent comes out of the case related to that, which at least means that there is no negative precedent related to tribal trust obligations. Each claim is discussed individually in more detail below.</div><div class="" style=""><strong class="" style="">Parties and procedural overview</strong></div><div class="" style="">The San Luis and Delta-Mendota Water Authority and Westlands Water District (“Plaintiffs”) sued the Department of Interior and the Bureau of Reclamation over Flow Augmentation Releases starting in August 2013, asserting claims under a number of different laws. The Hoopa Tribe, Yurok Tribe, Pacific Coast Federation of Fishermen’s Associations and Institute for Fisheries Resources were Defendant-Intervenors, and the California Department of Fish and Wildlife filed an amicus brief.</div><div class="" style=""><strong class="" style="">Endangered Species Act
claim</strong></div><div class="" style="">Plaintiffs asserted that the Bureau of Reclamation (Bureau) violated the Endangered Species Act by failing to engage in formal consultation procedures before carrying out the Flow Augmentation Releases. This claim was dismissed on the procedural grounds that Plaintiffs lacked standing to bring the claim.</div><div class="" style=""><strong class="" style="">NEPA claim</strong></div><div class="" style="">Plaintiffs claimed that the Bureau failed to conduct an environmental assessment, in violation of NEPA. Instead of doing an environmental assessment, the Bureau had invoked an “emergency” exception to NEPA. The court held that the Bureau’s action was “not a continuing practice and unlikely to repeat itself,” and the claim was dismissed as moot.</div><div class="" style=""> </div><div class="" style=""><strong class="" style="">Central Valley Project Improvement Act Claims</strong>:</div><div
class="" style="">These claims are complicated, as they involve numerous laws passed over time. The court had to determine how these laws relate to one another and their geographical scope (see below for a list of these laws).</div><div class="" style="">Question 1: Were the releases prohibited?</div><div class="" style="">Plaintiffs asserted that the 1999 Trinity River Record of Decision (TRROD) prohibited the releases at issue, because the TRROD set an upper limit for releases for fishery purposes, and the releases at issue exceeded those limits. The court rejected Plaintiffs’ argument, stating that the Flow Augmentation Releases were not prohibited by the TRROD because the TRROD is geographically specific to the mainstem Trinity River, and thus did not apply to the releases at issue, which were releases to improve conditions in the Lower Klamath River.</div><div class="" style="">Question 2: Were the releases authorized?</div><div class=""
style="">While these releases were not <em class="" style="">prohibited</em> by law, whether the Bureau had the <em class="" style="">authority</em> to make the releases is a separate question. The Bureau relied on the “1955 Act” as the source of its authority. This act created authority to integrate the Trinity River Diversion with the other features of the Central Valley Project; section 2 of the act authorized the Secretary of Interior to adopt appropriate measures to ensure preservation and propagation of fish and wildlife on the Trinity River. The court held that the 1955 Act is also limited to the mainstem Trinity River, and thus didn’t supply authority for the releases to the lower Klamath.</div><div class="" style="">The Tribes raised tribal trust obligations as an alternative source of federal authority for the releases. The court basically dodged this argument because the Bureau and Department of Interior weren’t
asserting it themselves. The Federal Defendants took the position that their trust obligation was “complementary authority” to the 1955 Act, and the court said that it would not consider the tribal trust obligation since the Bureau and Department of Interior wouldn’t assert it as an independent basis of authority for the releases.</div><div class="" style=""><strong class="" style="">California water rights claim</strong></div><div class="" style="">Plaintiffs also asserted that the Flow Augmentation Releases constituted a use of water outside of its permitted place of use, violating California water rights and the Central Valley Project Improvement Act. The court held that the Bureau has authority under California law to release water to improve instream conditions for fish and wildlife, and thus the releases did not violate California water law, or the Central Valley Improvement Act, which the court said, just incorporates California water law
by reference, as opposed to creating independent federal water law.</div><div class="" style=""> </div><div class="" style=""><strong class="" style="">Public trust doctrine argument</strong></div><div class="" style="">The California Department of Fish and Wildlife filed an amicus brief in the case, which is a way for a non-party to a lawsuit to express their opinion to the court, if the court grants permission. In its brief, the Department argued that the Flow Augmentation Releases were consistent with, and authorized by, California’s public trust doctrine. While the court agreed that the releases were consistent with the public trust doctrine, it stated that that doctrine does not affirmatively authorize federal (in contrast to state) action. The judge stated that, “[w]hile the public trust doctrine is relevant, it is not dispositive of any claim in this case.”</div><div class="" style=""><strong class="" style="">Partial list of
laws/events at issue</strong>:</div><div class="" style="">“1955 Act”: created authority to integrate the Trinity River Diversion with the other features of the CVP; section 2 authorized the Secretary of Interior to adopt appropriate measures to ensure preservation and propagation of fish and wildlife.</div><div class="" style="">1981: Trinity River Flow Evaluation Study was initiated to determine flows appropriate to restore the Trinity River’s fishery.</div><div class="" style="">1984 Trinity River Basin Fish and Wildlife Management Act: directs the Secretary of Interior to implement a management program for the Trinity River Basin to “restore fish and wildlife populations…to levels approximating those which existed before” the diversion.</div><div class="" style="">1992 Central Valley Project Improvement Act: includes purpose of protecting, restoring and enhancing fish and wildlife in the Central Valley and Trinity River
Basin.</div><div class="" style="">1996 Reauthorization of the Trinity River Basin Fish and Wildlife Management Act: reauthorizes and amends the 1984 Trinity River Basin Fish and Wildlife Management Act.</div><div class="" style="">1999 Trinity River Flow Evaluation Study (TRFES) completed: this study recommends dynamic flows, specifically flows ranging from 368,800 acre feet in critically dry years to 815,200 acre feet in extremely wet years, along with seasonal flow variability. This went through NEPA review, resulting in a “Trinity River Record of Decision” (TRROD) that prescribed certain flows depending on the type of water year.</div><div class="" style="">In conclusion, the Bureau’s decision to release flows into the Trinity River to improve conditions in the Lower Klamath River did not violate any laws, but was not specifically authorized. The next step is finding a permanent solution to remedy the need for regular “emergency” flows. In
dry water years, the health of the Klamath and Trinity Rivers are reliant upon the choice of a few decision-makers, and a few narrow thresholds that only trigger emergency releases if a fish kill is already well underway. Until the dams come out, we need to develop a system that prioritizes the health of the rivers and the fish, ensuring that we have healthy rivers, before we divert bulk water out of the basin.</div></div><hr class="" style="width: 870.46875px; height: 1px; text-align: center;"><div class="" style="">Article printed from Environmental Protection Information Center (EPIC): <strong dir="ltr" class="" style="">http://www.wildcalifornia.org</strong></div><div class="" style="">URL to article: <strong dir="ltr" class="" style="">http://www.wildcalifornia.org/blog/overview-of-the-klamath-flow-augmentation-release-decision/</strong></div><div class="" style="">URLs in this post:</div><div style="margin-top: 2px; margin-bottom: 2px;"
class="">[1] Click here to view the full decision. : <b class="" style=""><span dir="ltr" class="" style="">http://www.wildcalifornia.org/wp-content/uploads/2014/10/TrinitySJDecision10.1.14.pdf</span></b></div><div class="" style=""></div><div id="print-link" style="text-align: right;" class="">Click <a href="http://www.wildcalifornia.org/blog/overview-of-the-klamath-flow-augmentation-release-decision/print/#Print" title="Click here to print." class="" style="">here</a> to print.</div></div></div><div style="font-family: Verdana, Arial, Tahoma; font-size: 12px; text-align: center;" class="">Copyright © 2010 Environmental Protection Information Center (EPIC). All rights reserved.</div><div style="color: rgb(0, 0, 0); font-size: 16px; font-family: 'times new roman', 'new york', times, serif; background-color: transparent; font-style: normal;" class=""><br class="" style=""></div></div></body></html>