[env-trinity] Hoopa Valley Tribe Comments on EA/FONSI for CVP Interim Water Contract Renewal

Mon Mar 22 09:26:46 PST 2004

Bureau of Reclamation

ATTN:  Frank Michny

2800 Cottage Way

Sacramento, CA 95825-1898

Re:  Comments on Draft Supplemental Environmental Assessment and Draft Finding 

        of No Significant Impact for Central Valley Project Interim Renewal Contract

Dear Mr. Michny: 

            On behalf of the Hoopa Valley Indian Tribe, we have reviewed and now submit the following comments on the above referenced Draft Supplemental Environmental Assessment (SEA) and Draft Finding of No Significant Impact (FONSI).  These comments reflect the Tribe's ongoing concern with management of the Central Valley Project ("CVP"), which includes the Trinity River Division.  Because of the CVP's effect on fisheries reserved for our tribe, we are committed to ensuring that Reclamation actions subject to the National Environmental Policy Act (NEPA) reflect and comply with recent court decisions requiring, for example, that mitigation measures imposed as a result of consultation under Section 7 of the Endangered Species Act be addressed in draft environmental review documentation prepared pursuant to NEPA.  See e.g. Westlands v. United States, 275 F.Supp.2d 1157 (E.D. Cal. 2002) (discussed below).  This approach ensures that the public is fully informed and has the opportunity to comment and participate in the decision-making process on all aspects of projects affecting the human environment. 

            Reclamation has tentatively concluded that the proposed project, the renewal of up to fifty-nine (59) water service contracts for a term of up to two (2) years, will have no significant impact requiring assessment in an Environmental Impact statement.  Draft FONSI at 2.  That conclusion, however, is unsupported in a number of particulars as more fully described below.  It also relies in part on deferral of consideration of impacts to threatened and endangered species pending completion of consultation with NOAA-Fisheries and the Fish and Wildlife Service.  Id. Such an approach is impermissible in light of recent court decisions.  

1.                  Failure to Require Interim Contract Language to Reflect CVPIA Mandated Fishery Restoration Flows.

            On February 5, 2004, the Hoopa Valley Tribe ("Tribe") formally requested that language referencing the instream fishery flow requirements of the Trinity River be incorporated into the terms of interim renewal contracts between the Bureau of Reclamation ("Bureau") and Central Valley Project ("CVP") water service contractors.  This language is authorized by section 3404 of the Central Valley Project Improvement Act, Pub. L. 102-575, 106 Stat. 4600 (1992) ("CVPIA"), which subjects new and renewal CVP water service contracts to the fishery restoration provisions of the CVPIA, which includes the Bureau=s obligation to meet the fishery restoration requirements of the Trinity River as established by the Trinity River Flow Evaluation-Final Report ("Flow Study").  See CVPIA § 3406(b)(23).

            Contract language acknowledging Trinity River restoration requirements also reflects long-standing congressional directives that prioritize Trinity fishery releases over transbasin diversions to Central Valley contractors and is consistent with the federal government's trust responsibility to protect and preserve the Hoopa Valley Tribe's federally reserved fishing right.  The Tribe's request was narrowly tailored to require compliance with scientifically based fishery flow requirements set forth in the Flow Study.  Those requirements must be implemented pursuant to CVPIA § 3406(b)(23), and should be included as conditions on supply made available for delivery to Central Valley Project contractors. 

            The decisions of the federal courts since the enactment of the CVPIA make clear that the Bureau can and should reduce quantities of water delivered when fishery needs demand greater allocations.  See O'Neill v. United States, 50 F.3d 677, 686 (9th Cir. 1998) (holding that the CVPIA modified priority of water users and thus changed contractual obligations under pre-existing long-term water delivery contracts);  NRDC v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1998) (invalidating CVP renewal contracts for failure to comply with environmental requirements); Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1213 (9th Cir. 1999) (recognizing Bureau's 

 responsibility to manage project operations to "meet the requirements of the ESA, requirements that override the water rights of the Irrigators").  The Ninth Circuit has expressly recognized the Bureau's obligation to operate to meet the water needs of vested tribal fishing rights.  Klamath Water Users, 204 F.3d at 1214 (holding that the Bureau has "a responsibility to divert the water and resources needed to fulfill the Tribes' rights, rights that take precedence over any alleged rights of the Irrigators").  Accordingly, the terms of interim renewal contracts should expressly acknowledge those requirements, and the impacts of incorporating those requirements into the contracts should be assessed in an EIS. 

            Express subordination of water service delivery obligations to fishery restoration needs is hardly unprecedented.  E.g. id.  The Bureau has historically included fishery restoration requirements as among the conditions on supply available to satisfy interim renewal contracts.  For example, in California Trout v. Schaefer, 

 58 F.3d 469 (9th Cir. 1995), the court noted that an interim renewal contract for allocations from the New Melones Reservoir provided "a  maximum of 75,000 acre-feet of water annually, subject to availability after the Bureau satisfied the water needs of in-basin users and higher priority out-of-basin users."  Id. at 471 (emphasis added).  The "in-basin" needs given priority under that contract included those of "fish and wildlife resources" in the Stanislaus River Basin established under CVPIA § 3406(c)(2).  Id.  Given that precedent, the Bureau would not be breaking new ground by heeding the command of CVPIA § 3404(c) to include similar conditions in the terms of interim renewal contracts. 

            As of the date of these comments, HVT has received no indication from Reclamation that the agency intends to honor the Tribe's February 5, 2004 request.  Should such language be added to the interim contracts, additional environmental review may be necessary in order to evaluate what effect giving priority to the Trinity fishery flows will have on the availability of supplies and hence the reasonableness of the delivery obligations incurred in the interim contracts, as well as the various mitigation obligations outlined in the EA/FONSI.  To the extent that additional mitigation measures may be required as a result of prioritizing Trinity fishery releases over contract deliveries, the effect of those mitigation measures must be fully and fairly presented in any draft NEPA documentation, so as to allow the public the opportunity to review and comment on that analysis.  See e.g. Westlands, 275 F.Supp.2d at 1182.

2.                  Improper Deferral of Mitigation.

            As noted above, the SEA improperly defers consideration of impacts to threatened and endangered species pending completion of ESA § 7 consultation with NOAA-Fisheries and the Fish and Wildlife Service.  Draft FONSI at 2; Draft SEA at 13.[1]   Such an approach is impermissible under the recent ruling in Westlands, 275 F.Supp. 2d at 1182 -1185.  In that case, the court found that a Draft Environmental Impact Statement (DEIS) did not adequately analyze the impact of the proposed action on certain ESA-listed species.  Id. at 1183.  Further, the court found that the DEIS "did not consider or identify mitigation measures" for those impacts, other than to "specify that mitigation for impacts.would consist of consulting with the Service on impacts and implementing any required conservation measures."  Id.  The court concluded that Reclamation violated NEPA.

            That is precisely the approach adopted in the interim contract renewal SEA.  In the words of the Westlands court, this approach "defers consideration of mitigation efforts" and "precludes the parties from meaningful analysis."  Id. at 1184.  See also id. at 1188 ("The omission of discussion of mitigation measures foreclosed any public input on the issues of whether and what CVP operations management alternatives existed and were feasible; and whether alternate water sources existed or if reduced flows could reduce the impact on species and other CVP users."). 

            Moreover, to the extent that mitigation measures are imposed as a result of deferred ESA § 7 consultation, either in the form of Reasonable and Prudent Measures (RPMs) or other terms and conditions that may have significant effects, the Westlands case requires that the environmental impacts of those mitigation measures be discussed "with reasonable thoroughness."  Id. at 1192.  These measures and their environmental impacts must be disclosed to the public in a process that "included public participation", i.e. they must be disclosed in a manner that allows meaningful public scrutiny, comment, and participation.  Id. at 1198.  By deferring discussion of species impacts pending completion of consultation with the fisheries agencies, the Draft EA/FONSI for interim contract renewals fails to meet these requirements. 

3.                  Inadequate Discussion of Alternatives.  

            The Draft EA is insufficient because it lacks any discussion of the "environmental impacts of the proposed action and alternatives"  40 C.F.R. § 1508.9 (emphasis added).  Council on Environmental Quality (CEQ) regulations require that an environmental assessment "shall include" a discussion of the environmental impacts "of the proposed action and alternatives.." Id.  The Draft EA/FONSI, however, discusses only the proposed action of renewing interim contracts for an additional two-year period on the same terms as previous interim contracts.  It contains no comparative evaluation of alternatives to that action, and expressly excludes from consideration a number of reasonable alternatives, including non-renewal, tiered pricing, and renewal at reduced delivery amounts that would more accurately reflect current delivery constraints.  See Draft EA at 8-9.  A comparative analysis of differential environmental impacts of a range of alternatives to the proposed action must be undertaken in order to allow the public a meaningful opportunity to assess the proposed action.

4.                  City of Shasta Lake (City) - Unjustified Increase in Contract Amount.

            An addendum to the interim renewal contract proposed action/project description proposes increasing the City's contract amount by 1650 acre-feet.  The addendum asserts that no significant or demonstrable effects will result from this increase, in large part because actual use of water will not change due to the presumption that the City will "suspend the series of temporary water transfers it has relied upon in recent years."  However, no analysis is included addressing the potential scenario in which the City does not suspend transfers but instead seeks to further augment its supply by continuing to secure transfer of other CVP water.  

            Furthermore, there is no explanation as to why the revised contract amount is almost twice the City's projected needs.  The revised contract represents a 60% increase from current contract amount, over 46% more than 2003 projected actual use.  The addendum claims that the City's water usage has increased on average 4½ percent annually over the last four years, and thus projects that by 2005 the City will require 3,276ac-ft /year.  The addendum also asserts that increasing water supplies will not affect regional settlement or development patterns, due to availability of groundwater supplies to meet projected urban development needs.  Given these facts, there is no readily apparent justification, and certainly no justification given in the SEA, for the proposed increase to 4,400 ac-ft.  

            Thank you for allowing us the opportunity to comment on the Draft EA/FONSI.  We trust that our comments will be appropriately considered and responded to in any final NEPA documentation for this proposed action.  

Sincerely yours,

MORISSET, SCHLOSSER, JOZWIAK & McGAW

Thomas P. Schlosser

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nmc:3/16/04

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[1]  The Draft SEA at page 11 purports to incorporate by reference the FWS Biological Opinion for 2002 interim contracts ("2002 Interim BiOp"), which it asserts contains "the commitments that reclamation will undertake during the proposed 2004 interim renewal period."  To the extent that as a result of consultation on the 2004 renewal, FWS imposes RPMs, terms and conditions, or other requirements that differ in any respect from those contained in the 2002 Interim BiOp, the environmental impacts of those requirements must be disclosed to the public in a draft environmental document that is released to the public for review and comment. 
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