[env-trinity] Tom Stokely...Regarding Trinity River Record of Decision Presented March 2, 2004

[Richard Pruitt]

Hoopa Valley Tribe Fisheries Department

 

Introduction

On March 2, Bennett W. Raley, the Department of the Interior's Assistant Secretary
for Water and Science convened a meeting in the Sacramento, California, headquarters
of the Bureau of Reclamation with California Nevada Operations Manager Steve Thompson
of the Fish and Wildlife Service, Bureau of Reclamation Regional Director Kirk Rodgers,
and Counselor to the Assistant Secretary for Indian Affairs Michael Olsen.

Department of Justice Attorney Charles Shockey participated in a portion of the
meeting by telephone. Representatives of the Hoopa Valley Tribe attended the meeting,
including Tribal Chairman Clifford Lyle Marshall, Tribal Council members, 
Hoopa Fisheries Department Staff, legal counsel and a tribal consultant.

The meeting was convened so that Mr. Raley could present a proposal to settle pending
litigation that has blocked implementation of the Trinity River Record of Decision 
(ROD) issued by the Secretary of the Interior with the concurrence of the
Hoopa Valley Tribe on December 19, 2000, pursuant to section 3406(b)(23) of the
Central Valley Project Improvement Act, Public Law 102-575.

This is the third time since the ROD was issued that an alternative to the
ROD restoration decision has been proposed. An earlier proposal by the
Sacramento Municipal Utilities District was rejected after an independent
scientific review by the Geological Survey found it unworkable. 

Subsequently, the Westlands Water District and San Luis & Delta-Mendota Water
Authority made a proposal that also was rejected by the Tribe and the Department. 

Both proposals failed because they could not accomplish the restoration objectives 
or meet the scientific standards established by the Congress for the Trinity River.

The Proposal

Mr. Raley's proposal (Proposal) would adjust the flows in the ROD in Normal, 
Dry and Critically Dry years by substituting a range of flow allocations in 
place of the fixed flows identified in the ROD. Flow allocations for
Wet and Extremely Wet year types would not change from those in the ROD. 

See following Table. 

      Water Year
     ROD Flow (acre-feet)
     Proposed Flows (acre-feet)
     Percent Change
     
      Normal
     649,900
     575,000-701,000
     (-12% to +8%)
     
      Dry
     452,600
     400,00-504,000
     (-12% to +11%)
     
      Critically Dry
     368,600
     340,000-396,000
     (-8% to +7%)
     

 

The allocation in each year would be at the low end of the range and 
would be subject to adjustment within the year up to 20,000 acre-feet. 

The 20,000 acre-feet would be purchased from water users and banked in 
federal reservoirs to be used for in-season adjustments. 

An additional water bank account of 50,000 acre-feet of purchased water
would be held in reserve for use as needed to protect the fishery 
in the Klamath River below the Trinity confluence. 

Further adjustments between years would be made as discussed in 
paragraph 3 below.

Analysis

The following analysis was prepared by the Hoopa Fisheries Department 
at the direction of the Hoopa Valley Tribal Council with input from
policy officials, technical staff, and legal counsel.

1) Although the proposal purports to present a "range", it in fact 
diminishes the ROD flows by eight to twelve percent as described 
in the table. 

2) The "range of flows" proposal is not supported by any scientific analysis. 
In addition, the adoption of a range is based on a misunderstanding of how 
mathematical probability analyses should be applied in determining accurately 
and reliably the flow releases required for Trinity River restoration.

3) The managers of the restoration program could adjust the minimum flow in 
one of two ways.

a) Intra-annual adjustment In the event restoration managers observe a need 
for more water than the base allocation in a Normal Year, there would be 
authority to release an additional 20,000 acre-feet from the "Ready Reserve Water Bank". 

(The maximum reserve volume appears to be based on political considerations, not sound science.) 
There is no process or standard identified for determining the need for additional 
intra-annual releases. 

And any administrative decision would be subject to judicial review with its attendant 
costs and delays. The nature and extent of NEPA and ESA compliance that might be 
required in the intra-annual adjustment are not addressed. Note that in any event, 
the water bank account has only 20,000 acre-feet. Thus, in Normal, Dry or Critically Dry Years 
the water bank would be insufficient to bring flow releases up to the mid-range, 
that is ROD flow release, levels.  

Intra-annual adjustments could only occur pursuant to a process requiring several steps:
recognition of needs, assessment of potential adjustments, and then a decision to implement 
a change in flows.  Consequently, flows made available through this process could not timely 
address early-season fishery needs relating to geofluvial processes or temperature conditions 
during smolt outmigration, both of which are critical to restoration.

b) Inter-annual adjustment At the end of each water year, an assessment would be made 
as to whether the flow release for that year had been adequate for fishery restoration 
and propagation. If it is proven to be inadequate, an adjustment would be made in the 
next occurrence of the same water year type, which could be several years later. 

But by that time the circumstances may not be comparable and the benefit of an 
increased allocation would be difficult to assess. By the same token, if an excess of water 
is deemed somehow to have been allocated then there would be a debit in the future water year 
that under the circumstances of that year could prove harmful to the fishery and the harm 
would not be assessed until the end of the year. 

As with the intra-annual adjustment, there is no provision for a process or standard by which 
the inter-annual adjustment would be made, or environmental reviews would occur.

4) Whatever process and standard are established for adjustment of fishery flow releases 
may require diversion of personnel and resources of the adaptive management team. 
Instead of being able to rely on a constant volume of water as determined in the 
Trinity River Flow Evaluation Study, Final Report (June 1999) (TRFES), restoration program 
scientists and managers will be required annually to work with a reduced and variable 
water supply for each of three possible water year types. 

The Proposal's introduction of "debits" or "credits" in the fishery flow releases could affect 
the ability of restoration scientists to test adaptive management hypotheses. 

This could fundamentally alter the nature of the adaptive management program whose purpose is 
to conduct "a formal, systematic, and rigorous program of learning from the outcomes of 
management actions, accommodating change, and improving management," TRFES Appendix N, June 1999.

5) There is a 20,000 acre-feet cap on any intra-annual increase. That cap is further dependent 
on timely funding and availability of water for purchase in the Ready Reserve Water Bank. 
The Proposal would make the Ready Reserve Water Bank Account "top water"; that is, 
the first water spilled from CVP reservoirs.

6) There is a second "Emergency fall reserve" water account under the Proposal. 
This account in the amount of 50,000 acre-feet would be established to ensure the protection of 
the Klamath River fishery below the Trinity River confluence. This water would be purchased 
by the Department and would also be "top water." The proposal ignores the fact that the authorizing 
legislation for the Trinity River Division and the associated state permits require that the 
Secretary release 50,000 acre-feet of water annually and make it available to Humboldt County 
and downstream water users. 

The Bureau of Reclamation entered into a contract with Humboldt County to implement that 
provision in 1959. Humboldt County has informed the Secretary that it intends to use the 
water for restoration and maintenance of the lower Klamath fishery. 

To date the Secretary has failed to honor the contract.

7) The Proposal estimates that there would be a recurring $5 to 7 million cost to purchase the 
water to maintain the Ready Reserve Water Bank and the Emergency Fall Reserve. However the 
federal reclamation law pertaining to the construction and operation of the Trinity River Division, and 
the State permit conditions to which the operation of the TRD is subject, establish a first priority 
of use for Trinity River in-basin fishery needs over exports of water to the Central Valley. 
In view of the reduced federal budgets for Reclamation and the already keen competition for appropriated 
funds, there can be no reasonable expectation of readily available funding for this purpose. 
Any funding that is provided is almost certainly to come from other CVP operation, maintenance or environmental 
restoration programs.

8) The CVPIA expressly requires the Secretary to "operate the Central Valley Project . . . to meet 
all obligations under State . . . law . . . and all decisions of the California State Water Resources Control Board 
establishing conditions on . . . permits for the [Central Valley] project" Pub. L. 102-575 §3406(b)). 
The Proposal effectively would abandon the priority and entitlement to no-cost Trinity River Division water and 
undertake a permanent, recurring obligation to purchase water. Such a fundamental deviation from the 
law governing the Trinity River cannot be reconciled with the express federal trust obligation established in the 
CVPIA to protect and restore the Trinity River fishery for the benefit of the Hoopa Valley Tribe.

9) The Proposal closely resembles arguments made and rejected in the litigation brought to challenge the ROD, 
Westlands Water District, et al. v. United States, 275 F.Supp.2d 1157 (E.D. Cal. 2002) Civ. No. F-00-7124 
(Memorandum Decision and Order, December 10, 2002). Essentially, the plaintiffs argued that there was 
uncertainty in the underlying science and so it would be arbitrary and capricious for the Secretary to have 
"locked in permanent fixed amounts of water that are to be released in each water year type, even though the 
science that purports to measure the necessity of those amounts was not certain." Id. at 128. The Court went 
on to state that "An agency decision is not arbitrary or capricious because the agency recognizes the limitations 
of the information upon which it bases a decision. The fact that Interior has acknowledged it will learn new facts 
in the future, that river flow management is dynamic, and climatic conditions, upon which CVP water supply depend, 
uncertain, are indicative  of a reflective decisionmaking process, not arbitrariness." Id. at 129.

 

   The Court pointed out that best available scientific data is not exact and concluded "To the contrary, 
the certainty Plaintiff's seek could prevent the mandated statutory goal of flow restoration from ever being 
implemented" (emphasis added) Id. at 130.

 

   On page 131 of the opinion, Judge Wanger squarely confronted the problem with the approach that the 
Proposal takes. (The difference between the March 2 Proposal and the plaintiffs' argument rejected by Judge Wanger 
is that the former would arbitrarily limit what the adjustment could be, so in that respect the March 2 proposal 
is even more restrictive than the plaintiffs' failed argument to Judge Wanger). 

Judge Wanger states:

 

[P]laintiffs propose that the flows proceed "on a yearly basis to posit necessary flows, test those in accordance 
with the adaptive management plan and make necessary yearly adjustments."  They argue that Section (b)(23) 
does not require the Secretary to actually implement the permanent instream flows. 

Section (b)(23) has two subsections. The first mandates that the TRFES be completed 
and that it make recommendations regarding permanent instream flows 
[emphasis in original].  The second mandates that the recommendations be 
forwarded to Congress no later than December 31, 1996 and that if the 
Secretary and the Hoopa Valley Tribe concur, that those recommendations be implemented. 

The term `permanent' in the first section combined with the mandate that the recommendations 
actually be implemented upon the occurrence of finite events, forecloses plaintiffs' interpretation. 
Plaintiffs proposal that the instream flows for the Trinity River continue to be studied on a 
yearly basis and be changed, annually, based upon new information in perpetuity derogates the 
statute's use of the term "permanent". "Permanent" is defined as "existing perpetually; 
everlasting, especially without significant change" and "intended to exist or function 
for a long, indefinite period without regard to unforeseeable conditions."

 

Citations omitted, id. at 131-132.

Thus, Judge Wanger's ruling made it clear that the science of the ROD is sound and legally sufficient. 
Yet, it is this significant judicial victory for the Tribe's trust resource that the March 2 Proposal 
would negate.

Conclusion

Because the Proposal cannot accomplish the restoration objectives or meet the scientific
standards established by the Congress for the Trinity River, the Tribe respectfully requests 
that the Proposal be withdrawn.
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