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Dam fight pits city water against fish habitat

Operators of a dam on California's Central Coast told a Ninth Circuit panel it has no authority to release water to protect fish habitats.

(CN) — Santa Maria is a modestly sized town in northern Santa Barbara County known for its resplendent wineries and local barbecue styles. Its water supply is almost entirely dependent on the Twitchell Reservoir, created by a dam built just east of the city in the 1950s.

Recently a coalition of environmental activists filed suit against the Santa Maria Water Conservation District and the U.S. Bureau of Reclamation, which jointly administers the dam, claiming the way in which the water district manages the water supply is killing the endangered steelhead trout by not releasing enough water for spawning habitat. 

A federal judge ruled against the environmentalists, finding Congress enacted a rule when it created the dam that stated it was to be used for the express purpose of restoring groundwater in the area and supplying water for the city of Santa Maria

The environmentalists appealed, appearing before a three-judge panel of the Ninth Circuit on Monday morning to argue their case. 

Essentially the case hinges on the phrase “other purposes," a legal term used by Congress when it tasked the U.S. Bureau of Reclamation with running the dam. Because Congress gave the agency the authority to manage the dam for flood control, water conservation and other purposes, environmentalists argue the water district must manage water for fish conservation as well as the two primary stipulations. 

“If there are two opposing statutes, the law must harmonize those unless Congress gives express intention to the contrary,” said Erica Maharg, an attorney for the San Luis Obispo Coastkeeper, which brought the appeal. 

Maharg said the water district need only slightly alter its water management practices, releasing 4% of what is in the reservoir every 3 to 5 years when conditions in the river impinge on the spawning trout's habitat. 

The dam is located on the Cuyama River, about 66 miles downstream from its headwaters in the Chumash Wilderness Area. The dam sits about six miles upstream from where the Cuyama joins the Sisquoc River and becomes the Santa Maria River. 

Should the water district release water occasionally to support fish habitat, it would have very little impact on the city’s water supply. 

“But instead, defendants took a maximal position,” Maharg said. 

The water district argues it does not have the legal discretion to release more water for fish, since the authority by which it operates was created by Congress with the express purpose of controlling floods in the area and building water storage for Santa Maria. 

“Twitchell is unique,” said Kevin McArdle, attorney for the Bureau of Reclamation.

McArdle said the dam is not like others in California, which must be in compliance with the Endangered Species Act and state laws, because Congress created the dam with a specific law that stipulated its uses. 

But U.S. Circuit Judge Sidney Thomas asked McArdle about the phrase "other purposes." 

“If there were no other purposes wouldn’t have Congress said so?” the Bill Clinton appointee asked.

McArdle said other purposes were within the class of flood control and water storage, like groundwater supply management and preventing the intrusion of saltwater into underground aquifers. 

“But Congress did not say it was an exclusive list and that is the puzzlement of the statute,” Thomas said.

U.S. Circuit Judge Mary Schroeder also asked some tough questions of the dam operators. 

“When the law was created they had the sense that the river was not going to be used for spawning but it turns out the dam does have an effect,” the Jimmy Carter appointee said. “Are we just supposed to ignore the subsequent history and say this matter is frozen in time when the dam was built?”

McArdle said there are remaining disputes about the extent to which the fish use the river and whether the water district has sufficient water to make an appreciable difference in downstream habitat. 

U.S. Circuit Judge Carlos Bea appeared to favor the argument that fish habitat appears outside of the statutory authority vested in the water district and the Bureau of Reclamation. 

“Does other purposes also pertain to running a crew on water?” the George W. Bush appointee asked, basically noting that there must be a limiting principle to other purposes. 

But Maharg said the Endangered Species Act must be synthesized into the statutory language that created the dam so the judges need not find that fish habitat falls within the scope of "other purposes" to rule that the dam operators must provide sufficient spawning habitat for steelhead. 

The panel took the matter under submission and did not indicate how or when it would rule.

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