San Joaquin River DOTMDL -- Technical Working Group

Agencies lose S.J. River ruling; Judge: Water-sale contracts in 2001 violated the law

Stockton Record - July 30, 2005
By Dana Nichols

Agencies lose S.J. River ruling; Judge: Water-sale contracts in 2001 violated the law
Stockton Record 7/30/05
By Dana Nichols, staff writer

A federal judge ruled this week that three federal agencies violated the federal Endangered Species Act when they ignored the fact that long-term sales of San Joaquin River water would likely harm salmon, Delta smelt and several other threatened or endangered species.

Judge Lawrence Karlton of the U.S. District Court in Sacramento said in his ruling issued Wednesday that the U.S. Bureau of Reclamation broke the law in 2001 when it signed 25-year contracts to sell up to 2.1 million acre-feet per year of water from behind Friant Dam near Fresno.

Karlton did not say what the bureau, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service should do to fix the error.

Karlton's latest ruling is the second major legal blow to the Bureau of Reclamation's operation of Friant Dam.

In August, Karlton ruled that dam operators violated California law by diverting so much water to farms and cities that 60 miles of the river below Mendota is completely dry most of the time.

A remedy trial due to start in February will determine how much water must be restored to the river to allow the salmon and steelhead fisheries to recover.

Restoring water to the San Joaquin would also benefit Delta farmers and Stockton ratepayers. Farmers would have an easier time irrigating, because renewed flows would dilute salt pollution. Stockton would be able to get more water from the New Melones Reservoir on the Stanislaus River, much of which is now used to dilute the salty San Joaquin.

Karlton in coming months is expected to also consider whether dam operators have violated a second federal law, the National Environmental Policy Act, which requires agencies to consider the environmental effects of the things they do.

Representatives of all three agencies said Friday that they had only just received the ruling and did not have any comment on it.

Jim Thompson is an attorney for the Friant Water Users Authority, a group that represents farms and agencies that buy water from Friant.

"We're not surprised," Thompson said of the ruling. "Of course, we are not pleased. We do think there are some problems with the decision."

Thompson said he particularly disagreed with Karlton's findings because while the judge ruled based on a theoretical sale of 2.1 million acre-feet, actual sales are typically far below that. Thompson said Karlton should have ruled based on average sales.

Karlton said the law is clear that officials can't sign a deal for 2.1 million acre-feet but do their analysis on a smaller quantity.

"There is no question that ESA requires that all impacts of agency action -- both present and future effects -- be addressed in the consultation's jeopardy analysis," Karlton wrote.

Karlton's 78-page ruling repeatedly described the agencies' disregard for the various fish and other species as "arbitrary and capricious." The ruling quotes from internal memos that describe how officials rushed in early 2001 to complete the biological reports needed to justify the water sales.

For example, on Jan. 19, 2001, Fish and Wildlife Service senior biologist David Wright e-mailed another employee about "possible holes and weaknesses in our crash" biological opinion. Several higher-level supervisors also received that warning.

Wright told his colleague later that day to "slam out the conclusion section."

The Fish and Wildlife Service completed its opinion that same day -- only two days after it had received basic information from the Bureau of Reclamation needed to evaluate what the water sales would do to various species.

A coalition of 14 groups, including the Natural Resource Defense Council, filed the suit to restore water to the San Joaquin River.

Zeke Grader, executive director of the Pacific Coast Federation of Fishermen's Associations, another party to the suit, said Karlton's ruling sheds light on the frequent failure of federal wildlife agencies to protect wildlife.

"They are just like some spoiled children that refuse to follow the rules," Grader said. #

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