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

[Tim McKay]

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

  "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 
<mailto:dwalsh at sacbee.com>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

<mailto:dnicholsj at recordnet.com>DANA NICHOLS
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

<mailto:bwl3 at comcast.net>bwl3 at comcast.net

<mailto:bleydecker at stanfordalumni.org>bleydecker at stanfordalumni.org (secondary)

<http://www.fotr.org>http://www.fotr.org

<http://caltrout.org>http://caltrout.org






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-- 
	Tim McKay, executive director
	Northcoast Environmental Center
	575 H Street
	Arcata CA 95521
	(707) 822-6918 FAX 822-0827
	http://www.yournec.org
	tim at yournec.org
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