August 29, 2013

More water for salmon, less for farmers

By Damien M. Schiff Senior Attorney

Last week, Judge Lawrence O’Neill of the Eastern District of California okayed the Bureau of Reclamation’s plan to release up to 20,000 acre-feet of water into the Trinity and Klamath Rivers.  San Joaquin Valley water districts have filed a lawsuit challenging the releases, which ostensibly are for the health of spawning salmon populations.  Judge O’Neill ruled that, although the water-users had presented colorable arguments as to why the water releases would be illegal, and had shown that they would be seriously harmed by the loss of water, nevertheless the water releases should not be enjoined.  Crediting the connection between low flows and a massive fish kill in 2002, the judge ruled that the release of water now to augment low flows would be in the public interest.

Although at first blush the court’s ruling seems to be a set-back for the farmers, on closer review it presents something of a mild victory.  First, the Bureau’s original plan was to release 109,000 acre-feet, but now, as a result of the court’s earlier injunction, that amount has been reduced to 20,000 acre-feet, without any demonstrable harm to the salmon.  Second, the court did not rule on the merits of the lawsuit, but simply on the relative equities.  Third, the court agreed with the farmers that there is no scientific basis to double the flow (as opposed to merely increasing it by, say, 50%) to protect salmon health.  Thus, for all these reasons, San Joaquin Valley farmers have reason to be hopeful as this lawsuit proceeds to the merits.

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