Judge Rules That Bureau of Reclamation Violated ESA On San Joaquin River

August 15, 2005
By Dan Bacher

More Editorials By Dan Bacher

A federal judge ruled in late July that the Bureau of Reclamation and other agencies violated the Endangered Species Act by approving 25-year contracts for water diverted from the San Joaquin River at Friant Dam.

In his 78 page ruling, Judge Lawrence Karlton of the U.S. District Court in Sacramento determined that the federal government failed to adequately assess the impacts of the contracts on endangered salmon and other threatened fish and wildlife, accusing the federal government of "arbitrary and capricious conduct."

The contracts continue to leave 60 miles of the river, once a key contributor to the state's ocean salmon fisheries, dry, dusty and lifeless most of the year. Hopefully, the judge's decision will compel the agencies to reverse years of ecosystem destruction and let the river flow once again.

The Bureau's decision to sign long-term contacts perpetuated the environmental disaster that occurred after Friant Dam was finished in the late 1940's. The diversion of the river resulted in the extermination of the historically large and vibrant San Joaquin River spring chinook run that ascended the Sierra Nevada before Friant Dam blocked upstream migration.

Five decades of dewatering of the San Joaquin, combined with federal and state diversions from other San Joaquin tributaries and the Sacramento system, have culminated in the Delta food chain crash that state and federal scientists have documented over the past three years.

Karlton cited numerous violations of the law by three federal agencies - the Bureau of Reclamation, U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

"While numerous examples may be found, perhaps the clearest example of arbitrary conduct was when the Bureau, knowing that the Fish and Wildlife Service bases its analysis on the full contract amount, nevertheless, adopted a no jeopardy finding," said Karlton. "Because the Bureau failed to carry out its duty to ensure against jeopardy and adverse modification, and because the Bureau knew of the deficiency, the court must conclude that its conduct was arbitrary and capricious."

Karlton, in a previous ruling last fall, determined that the signing of the contracts violated the state Fish and Game codes, including the section (5939) requiring dam operators to release enough waters below dams to keep the fisheries in "good condition."

The case, NRDC v. Rodgers, is a 17-year-old case challenging Bureau of Reclamation operations at Friant Dam. Earlier in the case, a unanimous panel of the Ninth Circuit Court of Appeals in San Francisco invalidated previous long-tern contracts for violating the ESA, forcing the Bureau to continue water deliveries to Friant farmers under short-term contacts while new environmental review were undertaken.

"This ruling documents the government's utter failure to consider the wide-ranging impacts of Friant diversions on downstream fisheries and the San Francisco Bay Delta," said Kate Poole, a senior attorney with the Natural Resources Defense Council, who argued the case for a coalition of 14 fishing and conservation groups.

The plaintiffs include Trout Unlimited, California Striped Bass Association, National Audubon Society, Stanislaus Audubon Society, California Sportfishing Protection Alliance, United Anglers of California, California Trout, Pacific Coast Federation of Fishermen's Associations, Sierra Club, Bay Institute, San Joaquin Raptor Rescue Center, Friends of the River and the Nor-Cal Fishing Guides and Sportsmen's Association.

"Karlton's decision was the correct one," said Zeke Grader, president of the Pacific Coast Federation of Fishermen's Associations. "The Bureau is nuts for going ahead with the contracts when the amount of water available is in question. The Bureau should have done only 1 year renewals, when the water available is uncertain, rather than locking in the contracts for 25 to 40 year."

"This ruling is enormously significant to the restoration of fish and wildlife resources on the San Joaquin River and throughout California," said Byron Leydecker, chair of Friends of the Trinity River and consultant to California Trout. "The key issue here is what three agencies are consulting on under ESA: the actual or the potential amount of water contracted."

The judge ruled that it must analyze the potential (full contract), while it only analyzed the recent historical deliveries in the case of Friant.

"The implications of this are huge - imagine analyzing full contract deliveries for San Luis Unit, with its huge drainage and selenium problems," explained Leydecker. "It's impossible to believe that the Fish and Wildlife Service could reach a 'no jeopardy' conclusion under ESA with such a scenario."

The potential is that many, if not all, of the contract renewal consultations the federal agencies have done so far may have "authorized" full contract deliveries while not analyzing the impacts of these questionable deliveries. This ruling also throws into doubt the joint state and federal plans to export more water from the Delta - which the signing of the Central Valley Project contracts is based on.

It will be interesting to see how the Bureau and other agencies respond to the decision. At press time, neither a spokesman from the Sacramento or Fresno office of the Bureau of Reclamation was available for comment on the court decision.

The massive Central Valley Project is the largest federal reclamation project in the West. Congress enacted the Central Valley Project Improvement Act (CVPIA) in 1992 to protect and restore Central Valley fish and wildlife, including mandating the doubling of anadromous fish populations, yet many of these species continue to decline.

"Fisheries agencies have used many of the same defective approaches when considering other long-term contracts," said Hal Candee, NRDC senior attorney. "Their inadequate approach fails to address how CVP operations threaten the health of the entire bay delta ecosystem."

Faced with this precedent, I believe that the federal government should immediately suspend all of the long term contacts already signed or in the process of being signed in the Sacramento and San Joaquin Valleys until the Bureau determines how much water is necessary for endangered fish.

When a judge determines that the federal agencies designated to protect fish and wildlife have engaged in "arbitrary and capricious conduct," contracts signed in violation of the law should be held invalid and not re-signed until the exact impact upon salmon, steelhead, Delta smelt and other endangered species by the Friant and other Central Valley projects is determined. Natural science must upheld over political science - it's the law!