[env-trinity] Times-Standard: Trinity River flow release hearing continues today: Federal, tribal officials defend government's rights

[Tom Stokely]

http://www.times-standard.com/news/ci_23915677/trinity-river-flow-release-hearing-continues-today-federal 

Trinity River flow release hearing continues today: Federal, tribal officials defend government's rights
Catherine Wong/The Times-Standard and Kristan Korns/Two Rivers Tribune
POSTED:   08/22/2013 02:35:02 AM PDT | UPDATED:   ABOUT 5 HOURS AGO

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The decision of whether to release water from the Trinity River should be reached by around noon today, Judge Lawrence O'Neill announced after a full day of hearing testimonies on Wednesday from tribal officials, fishermen and federal scientists fighting to prevent a massive fish kill.
”The judge heard a very robust scientific defense on a very basic principle which is that fish need water,” Jan Hasselman, an Earthjustice attorney representing the Pacific Coast Federation of Fishermen's Associations, said. “He wanted to know if water flows affect fish disease, and he got a pretty resounding 'yes' from a pretty solid consensus of scientists.”
The federal Bureau of Reclamation had authorized the flows to begin Aug. 13, finding the supplemental flows were needed to protect an estimated 272,000 returning Chinook salmon -- making it the second largest return on record.
The Fresno-based Westlands Water District and the Los Banos-based San Luis & Delta-Mendota Water Authority filed suit against the bureau, claiming the releases would decrease already low water allocations available to farmers for irrigation. San Joaquin Valley farmers also argue that the bureau did not have the authority to authorize the flows.
The same day the releases were slated to begin, O'Neill granted a temporary restraining order and set a hearing for tribal and government officials to show evidence on how the extra water would save fish.
On Tuesday, he urged the two parties to attempt to reach a settlement before Wednesday's hearing, based on declarations he had received.
Among them was a declaration from Yurok Tribe fisheries biologist Josh Strange, which stated the flows needed were 20,000 acre-feet, which is significantly less the original calculation of 62,000 acre-feet and less than was used during previous special fall flow releases in 2003, 2004 and 2012.
Strange's declaration also stated that water temperatures may be low enough to not need protective flow releases after Sept. 21. Releases were originally planned to end in the last week of September.
Hasselman and Tom Schlosser, a private attorney representing the Hoopa Valley Tribe, both said they could not discuss the details of the meeting, but because no substantial progress was reported, the judge ordered the hearing to continue as scheduled.
During his opening statements, Schlosser discussed the rights of the federal government.
”The question in our mind is: Does the Secretary of the Interior have the discretion to make a water release in favor the senior water rights holders?” Schlosser asked. “The tribes' water rights predate the Central Valley Project by scores of years.”
Anna Stimmel, a federal attorney with the U.S. Department of Justice's Natural Resources Section, stated that the conditions in the river could lead to an outbreak of Ichthyophthirius multifiliis, commonly called “ich.”
”We can control these conditions by releasing additional flow,” Stimmel said. “We've done that every year for three years, and there has been no disease outbreak. We need to do that this year to protect tribal trust resources, public interest and the United States' statutory duty to protect the fisheries.”
Donald Reck, a Bureau of Reclamation natural resource specialist who studied the 2002 Klamath River fish kill, testified that ich is more prevalent in warm, standing water.
Hoopa Valley Tribal Fisheries Director Mike Orcutt said 2002 fish kill not only affected the fish, but tribal membership.
Hasselman said the 2006 fishing season that resulted from that kill was an economic disaster.
Steve Sims, a private water law attorney representing Westlands Water District, said in his opening statement that there is no way for anyone to analyze if the release will be effective.
”They're talking about severe consequences, significant risk and high likelihood of a disaster situation, but we don't think the scientific evidence supports that,” Sims said. “As far as we know now there's no ich infection in the basin. Remember, infection is the one guy with the flu in the woods, it's not an episodic break. What our experts will show is that there has to be an infection before it can spread.”
O'Neill stated, “That's like saying don't bother to get a flu shot, unless you know someone who has the flu. Isn't it reasonable to try to prevent all of it?”
The hearing was recessed in the afternoon and is scheduled to continue today with testimonies from Westlands Water District officials. The Bureau of Reclamation, Westlands Water District and San Luis & Delta-Mendota Water Authority could not be reached by the Times-Standard's deadline.

Catherine Wong can be reached at 441-0514 or cwong at times-standard.com. Follow her on Twitter and Tout @cmwong27.
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