[env-trinity] Trinity Journal: Flow ruling gets mixed reactions

[Tom Stokely]

http://www.trinityjournal.com/news/environment/article_a66712b8-4e98-11e4-ad7b-0017a43b2370.html

Flow ruling gets mixed reactions
By AMY GITTELSOHN The Trinity Journal | Posted: Wednesday, October 8, 2014 6:15 am
A federal judge in Fresno dismissed most but not all claims from Central Valley Project irrigators opposing the federal Bureau of Reclamation’s release of additional water to the Trinity River to protect fish in the lower Klamath River.
Reclamation has released the additional flows in some years following a die-off of fall chinook salmon in the lower Klamath in 2002 due to disease from overcrowding. The Trinity River is the largest tributary to the Klamath.
Basically, U.S. District Court Judge Lawrence J. O’Neill laid out what arguments and legal authorities work for each side in his decision issued Oct. 1.
In his decision looking at Reclamation’s flow augmentation in 2013 that the plaintiffs Westlands Water District and San Luis & Delta-Mendota Water Authority sued over, Judge O’Neill ruled as follows:
He dismissed the plaintiffs’ claims that the augmented flows violated the Endangered Species Act, the CVP Improvement Act and the Trinity River Record of Decision.
However, he did find that Reclamation’s citation of the 1955 act that authorized construction of the Trinity River Division and gives precedence to in-basin needs should not be used when the water is intended to improve conditions in the lower Klamath.
The ruling has caused mixed reaction even among parties that have been on the same side on the issue.
The Yurok Tribe, Pacific Coast Federation of Fishermen’s Associations and Earthjustice issued a joint news release stating that Judge O’Neill “largely upheld” the Bureau of Reclamation’s ability to provide the additional flows in the Trinity but at the same time indicated that Reclamation must invoke different legal authorities.
However, the Hoopa Valley Tribe said it will appeal the decision.
Hoopa Tribal Chairwoman Danielle Vigil-Masten said, “With the stroke of a pen the court severed the Klamath River’s largest tributary and sutured it onto the Sacramento River. The lifeblood of our people will now flow south to industrial agriculture.”
Reclamation should have invoked its tribal trust responsibilities to protect the fish, the tribe said.
From Earthjustice, attorney Jan Hasselman said, “We’re all happy these flow releases have happened, and we think they’ve averted disaster the last two years.”
He added that there is a sense that Reclamation “hasn’t really gone to bat in every way possible for the fish and the people that care about them.”
One example is a provision in the 1955 act that gives 50,000 acre-feet of water from the Trinity reservoir to Humboldt County and downstream users. Reclamation did not invoke that authority although Humboldt has asked the agency to do so, he said.
A spokesperson for Westlands Water District said any comment on the judge’s decision would need to be from General Manager Tom Birmingham. He was traveling and did not return the Journal’s calls on Monday and Tuesday.
What the judge’s decision means for future flow augmentations is not spelled out in his ruling. One thing all the interveners in the lawsuit that support the flow augmentations and the plaintiffs agree on is that Reclamation needs a long-term plan for addressing these situations, Hasselman said, “and the judge is clear he expects them to do that.”
“We would all like to see and start work today on a long-term water management plan that provides a little more certainty for everybody,” he said.
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