[env-trinity] Los Angeles Times, Stockton Record and Sacramento Bee on Friant Contracts

[Byron]

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 California agriculture.

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 case.

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.

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, he said.

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.

 

     SACRAMENTO BEE:

 

 


 

 

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 Page A1
<http://sfmail.nrdc.org/content/print_edition/#MAIN NEWS>  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. 

 
<http://ads.sacbee.com/RealMedia/ads/adstream_lx.ads/www.sacbee.com/content/
news/1136205603/Button20/Sacbee/richmond_336_nw_jul_5/richmondamerican_336x2
80_aug2003.html/34306163363063383432656230626330?_RM_EMPTY_> "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. 

"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 this time. 

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." 

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. 

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 Fisheries Service." 

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 order says. 

"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. 

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
dwalsh at sacbee.com. 

*	

  _____  


Sacramento Bee/Nathaniel Levine

STOCKTON RECORD:

Agencies lose S.J. River ruling 
Judge: Water-sale contracts in 2001 violated the law

DANA NICHOLS <mailto:dnicholsj at recordnet.com>  
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 Fresno.

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.

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 decision."

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 various
species.

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

 

 

 

Byron Leydecker, 

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

bwl3 at comcast.net

bleydecker at stanfordalumni.org (secondary)

http://www.fotr.org

http://caltrout.org

 

 

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