Court Supports Order to Divert Water to Support Salmon

The federal government can redirect water from a Northern California dam to prevent mass die-offs of salmon in drought years, water that otherwise would be shipped to Central Valley farmers, a federal appeals court ruled Tuesday.

Tom Stokely of the California Water Impact Network walks below Lewiston Dam on the Trinity River, where flow has been increased to protect salmon. (Michael Moore, San Francisco Chronicle)

The U.S. Bureau of Reclamation had authority under a 1955 federal law to release Trinity River water from the Lewiston Dam in 2013 into the Klamath River, where salmon were migrating to their spawning grounds, said the Ninth U.S. Circuit Court of Appeals in San Francisco.

That law allowed the government to take “appropriate measures” to preserve fish and wildlife, the court said. And it gave the Bureau of Reclamation “substantial discretion to determine what constitutes ‘appropriate measures’ in the face of unforeseen or changing circumstances,” Judge N. Randy Smith said in the 3-0 ruling. He said the law specified maintaining Trinity River water flow as one of the “appropriate measures” the bureau could take.

In addition, Smith said, under California law dam owners, including the federal government, are required, not merely permitted, to release enough water “to keep in good condition any fish that may be planted or exist below the dam.”

Smith, generally one of the court’s more conservative judges, was appointed by President George W. Bush.

A lawyer for fishing groups that supported the increased water flows said the state law would be a safeguard if the Trump administration refused to order releases in future drought years.

“The court has said you have a duty under state law to protect these fish,” said Trent Orr, an attorney with Earthjustice in San Francisco.

At a campaign rally in Fresno in May, candidate Donald Trump said California’s drought, then in its fifth year, was a fiction and that the state had “plenty of water” but chose to ”shove it out to sea … to protect a certain kind of 3-inch fish.”

That fish, the delta smelt, is a threatened species that California protects by limiting releases of water from the Sacramento-San Joaquin River Delta. Trump promised his supporters that, once elected, “we’re going to start opening up the water, so that you can have your farmers survive.”

The Justice Department, which represented the Bureau of Reclamation, did not respond to a request for comment on the ruling. There was no immediate comment from lawyers for the Westlands Water District and the San Luis & Delta-Mendota Water Authority, which challenged the bureau’s actions.

For most of the past half-century, water from the Trinity River, a Klamath tributary, has been largely diverted to the federal Central Valley Project for agricultural use, but the deaths of about 34,000 Klamath River salmon prompted a federal judge in 2002 to authorize increased flows to the river. As water supplies dwindled in 2013, the Bureau of Reclamation ordered renewed flows from Lewiston Dam to protect the salmon, and did so again the following two years.

In upholding the bureau’s actions, the court cited both the 1955 wildlife-protection law and other measures intended to protect the fishery resources of the Hoopa Valley tribe, in the Trinity River basin, and the Yurok tribe in the lower Klamath basin.

Article by: Bob Egelko
Published: February 21, 2017 by the San Francisco Chronicle
Read original here.