Ninth Circ. Sides With Feds in NorCal Water Fight

Photo: Bureau of Reclamation

SAN FRANCISCO (CN) – The Ninth Circuit ruled Tuesday that the federal government had the authority to release additional water from the Lewiston Dam in 2013 to prevent a salmon die-off, despite historic drought conditions.

Built in the 1950s, the Lewiston Dam is a 91-foot high dam on the Trinity River that forms Lewiston Lake, a Northern California reservoir with a total capacity of 14,660 acre-feet. Near the towns of Weaverville and Lewiston, the dam is used for flood control as well as hydroelectric generation.

An acre-foot is enough water to cover one acre one foot deep. Roughly 325,480 gallons, an acre-foot can supply a typical suburban household for a year.

The reservoir sits in the canyon between the Trinity and Marble Mountains in the Whiskeytown–Shasta–Trinity National Recreation Area. With mixed evergreen forests, Blue oak grasslands, and oak woodlands surrounding several man-made lakes, the 203,587-acre recreation area attracts hikers, kayakers, fishers and boaters. It is also home to a variety of wildlife, including bald eagles, osprey, deer and bears.

Beginning at its headwaters in California’s Trinity Alps, the Trinity River runs south before wending northwest to meet the Klamath River at the town of Weitchpec and empty into the Pacific Ocean some 40 miles downstream. Before the river was blocked by dams, roughly 75,000 Chinook salmon migrated from the ocean to the river’s North Fork each year. These fish are a dietary staple for several Native American tribes in the area including the Yurok and Hoopa Valley tribes.

As of Feb. 11 this year, Lewiston Lake was at 99 percent capacity. According to the California Water Data Exchange Center and U.S. Geological Survey websites, checked Tuesday afternoon, Lewiston Lake has been releasing between 325-360 cubic feet of water per second since Feb. 14.

In early August 2013, the Bureau of Reclamation announced it would release up to 109,000 acre-feet of water from Lewiston Dam to the lower Klamath River to prevent salmon from dying during their upriver migration to spawning grounds. Such a die-off previously occurred in 2002, when low river levels allowed fish pathogens to proliferate and kill around 34,000 salmon.

To support this action, the Bureau claimed the Act of August 12, 1955 gave it the authority to release water beyond the amount designated by water release schedules.

But the San Luis & Delta-Mendota Water Authority and Westlands Water District challenged the decision in federal court, accusing the government of prioritizing fish above the needs of San Joaquin Valley farmers and communities. The Pacific Coast Federation of Fishermen’s Association, the Institute for Fisheries Resources, and the Hoopa Valley and Yurok tribes were allowed by U.S. District Chief Judge Lawrence O’Neill to intervene as defendants.

Though O’Neill initially issued an injunction preventing any releases from Lewiston Dam, he lifted the restraining order days later and the Bureau of Reclamation ultimately released 17,500 acre feet.

This prompted the water contractors to file an amended complaint claiming the government had violated federal environmental laws and the state Central Valley Project Improvement Act, claims that O’Neill rejected in his October 2014 ruling.

However, O’Neill did find that the Act of 1955 did not authorize the federal government to release additional flows for the benefit of salmon in the lower Klamath River.

On Tuesday, a three-judge panel with the Ninth Circuit disagreed in part, finding that temporarily augmenting Trinity River flows to protect fish was within the Bureau of Reclamation’s statutory authority.

In relevant part, section 2 of the Act of 1955 states that “the secretary is authorized and directed to adopt appropriate measures to insure the preservation and propagation of fish and wildlife, including, but not limited to, the maintenance of the flow of the Trinity River below the diversion point at not less than one hundred and fifty cubic feet per second.”

This unambiguous passage contains no limiting language, indicating that Congress intended to grant the government “substantial discretion” when determining appropriate measures to protect fish and wildlife downstream from the Lewiston Dam, Circuit Judge N. Randy Smith wrote for the panel.

“Thus, even if Congress, when it enacted the 1955 Act, did not contemplate a mass fish die-off in the lower Klamath or the flow augmentation release [Bureau of Reclamation] implemented to prevent it, we still must interpret the general language of the preservation and propagation mandate as authorizing the release,” Smith wrote in the 38-page ruling.

Arguments that the flow augmentations were not appropriate because they did not provide water for the Central Valley, the primary purpose of the 1955 Act, fail because they ignored the provision exempting wildlife protection measures from that directive, according to the ruling.

The panel also shot down claims that the Central Valley Project Improvement Act permanently amended the 1955 Act to stop releases from Lewiston Dam to protect fish and wildlife, pointing out that the Improvement Act was enacted to address a particular problem and contains no language indicating Congress intended it to amend or repeal the 1955 Act.

“The implementation of a specific program does not nullify an agency’s pre-existing discretionary authority,” Smith wrote.

But the panel affirmed O’Neill’s rejection of the water contractors’ claims under the Central Valley Project Improvement Act and the Reclamation Act, agreeing that the Bureau of Reclamation properly complied with state water permitting requirements.

Circuit Judge Alex Kozinski and U.S. District Judge Sharon L. Gleason, sitting by designation from the District of Alaska, joined Smith on the panel.

Daniel O’Hanlon with Kronick Moskovitz Tiedemann & Girard of Sacramento argued for the water contractors, and Nathan Voegeli represented intervenor-defendant Yurok Tribe. Neither attorneys immediately returned emailed requests for comment sent Tuesday evening.

The U.S. Department of Justice also did not immediately return emailed requests for comment.

 

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