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Salmon trial is slowed by legal maneuvers

Posted by: Aqua Blog Maven on June 24, 2008 at 8:26 pm

From the California Farm Bureau Federation:

In a surprise move last week, attorneys for environmental groups pressed a federal judge in Fresno for emergency protections of endangered salmon and steelhead runs. The request came in the middle of a trial in Federal District Court that has already consumed several weeks of testimony.

The outcome of the emergency motion and the overall trial could further limit the state’s water supply if the court finds current water project operations add to the decline of the species.

As the trial continues, California Farm Bureau Federation Associate Counsel John Weech said, “We’re actively engaged in these trial proceedings. We’re well aware of the potentially far-reaching impact decisions of the court will have on the state’s agriculture. Farmers and ranchers support healthy fisheries and well-reasoned measures to guard our wildlife resources, but simply removing water from agriculture is not an acceptable solution to a complex problem.

“We will continue to advocate for comprehensive approaches to California’s water challenges that don’t have a draconian effect on our food supply,” said Weech, who is an attorney for CFBF’s Natural Resources and Environmental Division.

The emergency request for an injunction to increase flows on Clear Creek and remove the gates at the Red Bluff Diversion dam came in the middle of an ongoing trial related to the decline of winter and spring chinook salmon and steelhead runs.

Plaintiffs in the case cited an emergency because the spring salmon run has nearly concluded and, as the trial continues, changes to U.S. Bureau of Reclamation project operations would have less benefit to the fish.

U.S. District Court Judge Oliver Wanger granted the request that the court consider the emergency request for injunctive relief. The two-part request sought to immediately increase flows on Clear Creek to 150 cubic feet of flow per second, versus the planned 85 cfs.

Wanger denied the request, saying he found the government agencies had taken adequate steps to protect species during project operations and declined to increase flows on Clear Creek.

In addition, attorneys for the Natural Resources Defense Council asked the court to consider immediately removing the gates at the Red Bluff Diversion Dam to release impounded water and increase Sacramento River flows.

The larger issue–removing the gates and draining the Red Bluff Diversion Dam–was held over until this week. Hanging in the balance is more than 300,000 acre-feet of agricultural water needed to irrigate about 150,000 acres of farmland during peak irrigation season.

The Red Bluff Diversion Dam provides water to support a variety of crops worth more than $250 million a year, said Jeff Sutton, Tehama-Colusa Canal Authority general manager. “The overall impact of that production makes an estimated $1 billion contribution to the regional economy.”

Water from the diversion dam supplies 18 water districts through Tehama, Colusa, Glenn and northern Yolo counties, with about 300,000 acre-feet of Central Valley Project contract water.

Officials with the City of Red Bluff estimate the water behind the diversion dam, which annually creates Lake Red Bluff, generates about $4 million for the city from recreation activities each year. For nearly a decade, the Tehama-Colusa Canal Authority has been trying to get a pump station built that would supply the water conveyance system.

A $160 million construction project to install adequately sized pumps has completed environmental reviews and is moving toward the permitting stage. There currently is an experimental pump at the head of the canal with a capability of pumping about 465 cfs.

The Red Bluff Diversion Dam stands 52 feet high, with 11 gates, and raises the Sacramento River 21 feet. Diversions from Lake Red Bluff enter the canal and flow to contract water districts.

“With consideration of the emergency measures decided, testimony will then proceed regarding the current management of releases from Lake Shasta through the Red Bluff Diversion Dam and the operation of the Tehama-Colusa Canal,” said CFBF Associate Counsel Kari Fisher of the Natural Resources and Environmental Division. “Although there have been several days of expert testimony on the outlook for species, it’s hard to evaluate how the judge is viewing the information. It is up to Judge Wanger to decide if immediate remedies need to occur and what course of action the bureau will need to take in the future regarding species protections.”

So far the bulk of the testimony, which has now spanned several weeks, has come from fisheries biologists. The trial continues this week with further expert testimony, including operations of the state and federal water projects.

This phase of the trial is devoted to testimony in a case brought against the U.S. Bureau of Reclamation and the state Department of Water Resources by the Natural Resources Defense Council, along with California Trout, Baykeeper and its Deltakeeper Chapter, Friends of the River and the Bay Institute.

The court has already found the biological opinion used to guide state and federal water operations in the Sacramento-San Joaquin Delta and the Sacramento River inadequate. This phase of the case is to determine if additional protections for the fish are needed.

California Farm Bureau Federation is participating in the trial on behalf of the defendants, as are many of the irrigation districts that would be affected by changes in project operations or further curtailment of water delivers particularly from lakes Shasta and Oroville.

A new biological opinion is being developed now by the National Marine Fisheries Service, but won’t be complete until next spring. The court is trying to determine if additional steps should be taken in the meantime to protect the fish.

Specific interim remedies have been submitted by the plaintiffs, put forward by fisheries biologist Tina Swanson, who is a senior scientist for the Novato-based Bay Institute.

In 2003, Swanson was appointed by the National Oceanic and Atmospheric Administration to the Central Valley Technical Recovery Team, a team of scientists developing recovery criteria and strategies for Endangered Species Act-listed salmonids in the watershed. She also serves on the California Bay-Delta Authority’s Adaptive Management Planning Team for delta ecosystem restoration.

Immediate actions Swanson has proposed to the court in her depositions include:

• Modifying Lake Shasta water releases to establish and maintain a water temperature of 56 degrees Fahrenheit at Balls Ferry.

• Modifying Shasta Reservoir releases to conserve water and maximize the amount of stored water–especially cold water–carried over to the 2009 water year, which would further reduce water supplies for this year. Water years operate from Oct. 1 to Sept. 30.

• Open Red Bluff Diversion Dam gates to allow passage of adult salmon and reduce mortality of juveniles. (Being considered as a request for an emergency injunction.) There currently are fish ladders at this location which experts say may slow migration, but does not prevent it.

• Maintain Clear Creek flows at a minimum of 200 cubic feet per second in June and a minimum of 150 cfs in July and August. (Already denied by the court as an emergency measure.)

“Until testimony concludes and the judge rules on this complex issue, we do not know the full extent of impact for our farmers,” Fisher said. “There are numerous protections in place for our fisheries and we will have to wait and see if the court finds them adequate in the interim.”

(Kate Campbell is a reporter for Ag Alert. She may be contacted at kcampbell@cfbf.com.)