[env-trinity] EPIC: Overview of the Klamath-Trinity Flow Augmentation Release Decision

[Tom Stokely]

http://www.wildcalifornia.org/blog/overview-of-the-klamath-flow-augmentation-release-decision/

- Environmental Protection Information Center (EPIC) - http://www.wildcalifornia.org -
Overview of the Klamath-Trinity Flow Augmentation Release Decision
Posted By Lucy Allen On October 8, 2014 @ 2:46 pm In Blog | Comments Disabled
Judge Lawrence O’Neill recently issued a decision in San Luis & Delta-Mendota Water Authority v. Jewell, a case dealing with the Flow Augmentation Releases to the Klamath River since August of 2013. Click here to view the full decision. [1]
What comes out of the decision is that the Trinity River Record of Decision, which sets limits on flows to restore fish and wildlife, is geographically limited to the mainstem Trinity River, and therefore does not limit Klamath River flows. However, the law that the Federal Government relied on to make the releases (the “1955 Act”) is also geographically specific to the mainstem Trinity River and thus does not provide authority for these releases. The court dodged the tribal trust obligation arguments, so no precedent comes out of the case related to that, which at least means that there is no negative precedent related to tribal trust obligations. Each claim is discussed individually in more detail below.
Parties and procedural overview
The San Luis and Delta-Mendota Water Authority and Westlands Water District (“Plaintiffs”) sued the Department of Interior and the Bureau of Reclamation over Flow Augmentation Releases starting in August 2013, asserting claims under a number of different laws. The Hoopa Tribe, Yurok Tribe, Pacific Coast Federation of Fishermen’s Associations and Institute for Fisheries Resources were Defendant-Intervenors, and the California Department of Fish and Wildlife filed an amicus brief.
Endangered Species Act claim
Plaintiffs asserted that the Bureau of Reclamation (Bureau) violated the Endangered Species Act by failing to engage in formal consultation procedures before carrying out the Flow Augmentation Releases. This claim was dismissed on the procedural grounds that Plaintiffs lacked standing to bring the claim.
NEPA claim
Plaintiffs claimed that the Bureau failed to conduct an environmental assessment, in violation of NEPA. Instead of doing an environmental assessment, the Bureau had invoked an “emergency” exception to NEPA. The court held that the Bureau’s action was “not a continuing practice and unlikely to repeat itself,” and the claim was dismissed as moot.
 
Central Valley Project Improvement Act Claims:
These claims are complicated, as they involve numerous laws passed over time. The court had to determine how these laws relate to one another and their geographical scope (see below for a list of these laws).
Question 1: Were the releases prohibited?
Plaintiffs asserted that the 1999 Trinity River Record of Decision (TRROD) prohibited the releases at issue, because the TRROD set an upper limit for releases for fishery purposes, and the releases at issue exceeded those limits. The court rejected Plaintiffs’ argument, stating that the Flow Augmentation Releases were not prohibited by the TRROD because the TRROD is geographically specific to the mainstem Trinity River, and thus did not apply to the releases at issue, which were releases to improve conditions in the Lower Klamath River.
Question 2: Were the releases authorized?
While these releases were not prohibited by law, whether the Bureau had the authority to make the releases is a separate question. The Bureau relied on the “1955 Act” as the source of its authority. This act created authority to integrate the Trinity River Diversion with the other features of the Central Valley Project; section 2 of the act authorized the Secretary of Interior to adopt appropriate measures to ensure preservation and propagation of fish and wildlife on the Trinity River. The court held that the 1955 Act is also limited to the mainstem Trinity River, and thus didn’t supply authority for the releases to the lower Klamath.
The Tribes raised tribal trust obligations as an alternative source of federal authority for the releases. The court basically dodged this argument because the Bureau and Department of Interior weren’t asserting it themselves. The Federal Defendants took the position that their trust obligation was “complementary authority” to the 1955 Act, and the court said that it would not consider the tribal trust obligation since the Bureau and Department of Interior wouldn’t assert it as an independent basis of authority for the releases.
California water rights claim
Plaintiffs also asserted that the Flow Augmentation Releases constituted a use of water outside of its permitted place of use, violating California water rights and the Central Valley Project Improvement Act. The court held that the Bureau has authority under California law to release water to improve instream conditions for fish and wildlife, and thus the releases did not violate California water law, or the Central Valley Improvement Act, which the court said, just incorporates California water law by reference, as opposed to creating independent federal water law.
 
Public trust doctrine argument
The California Department of Fish and Wildlife filed an amicus brief  in the case, which is a way for a non-party to a lawsuit to express their opinion to the court, if the court grants permission. In its brief, the Department argued that the Flow Augmentation Releases were consistent with, and authorized by, California’s public trust doctrine. While the court agreed that the releases were consistent with the public trust doctrine, it stated that that doctrine does not affirmatively authorize federal (in contrast to state) action. The judge stated that, “[w]hile the public trust doctrine is relevant, it is not dispositive of any claim in this case.”
Partial list of laws/events at issue:
“1955 Act”: created authority to integrate the Trinity River Diversion with the other features of the CVP; section 2 authorized the Secretary of Interior to adopt appropriate measures to ensure preservation and propagation of fish and wildlife.
1981: Trinity River Flow Evaluation Study was initiated to determine flows appropriate to restore the Trinity River’s fishery.
1984 Trinity River Basin Fish and Wildlife Management Act: directs the Secretary of Interior to implement a management program for the Trinity River Basin to “restore fish and wildlife populations…to levels approximating those which existed before” the diversion.
1992 Central Valley Project Improvement Act: includes purpose of protecting, restoring and enhancing fish and wildlife in the Central Valley and Trinity River Basin.
1996 Reauthorization of the Trinity River Basin Fish and Wildlife Management Act: reauthorizes and amends the 1984 Trinity River Basin Fish and Wildlife Management Act.
1999 Trinity River Flow Evaluation Study (TRFES) completed: this study recommends dynamic flows, specifically flows ranging from 368,800 acre feet in critically dry years to 815,200 acre feet in extremely wet years, along with seasonal flow variability. This went through NEPA review, resulting in a “Trinity River Record of Decision” (TRROD) that prescribed certain flows depending on the type of water year.
In conclusion, the Bureau’s decision to release flows into the Trinity River to improve conditions in the Lower Klamath River did not violate any laws, but was not specifically authorized. The next step is finding a permanent solution to remedy the need for regular “emergency” flows. In dry water years, the health of the Klamath and Trinity Rivers are reliant upon the choice of a few decision-makers, and a few narrow thresholds that only trigger emergency releases if a fish kill is already well underway. Until the dams come out, we need to develop a system that prioritizes the health of the rivers and the fish, ensuring that we have healthy rivers, before we divert bulk water out of the basin.
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[1] Click here to view the full decision. : http://www.wildcalifornia.org/wp-content/uploads/2014/10/TrinitySJDecision10.1.14.pdf
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